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26 January 05. An apology

First, I apologize that the book will not be free (as in beer). In fact, it's the opposite of free: $28.95, paperback, 150 pp. It seem the publisher is shooting for business schools and people with expense accounts. Authors and presses are always at cross-odds on this one, I imagine, in that the author always wants as wide a readership as possible while the press wants to maximize profits. My press, which has a lot of really smart people who work full time on coming up with prices, decided that the profit-maximizing scheme is to ignore all the thousands of people out there in Internet-land who wouldn't think twice about buying the book for ten bucks in favor of scoring a few good business school reading lists.

I apologize that the book will not be free (as in speech). I don't think I'm allowed to put a copy online, and will have to ask nicely about doing so when the book is out of print. You'll probably see about three out of nine chapters soon, though. It certainly won't be in any hip new formats like a wiki any time soon, since I don't know how to set one up and am not in the mood to try right now. I like PDFs.

I apologize that the book is in Word format. This would have been a wonderful opportunity to try to talk [name of Institution] into not using a Microsoft product for just once, already. But [name of Institution] has drunk the Kool-ade and come back for seconds. I mean, it's sort of offensive how many things they do manually because Word doesn't do it automatically, but they stick with it anyway. I'm just happy that editor finally broke down and did some of the formatting for me, probably after I mucked it up so much. [Seems that Word has both character styles and paragraph styles, and applying one of each to the same section is an ordeal which was too much for me.]

I apologize that the book won't be out before May. The fight over software patents is going on in Europe now, but I can't really contribute. On a brighter note, it's modestly likely that the debate will be reopened on 2 February, meaning that the full debate will last up to another year. But the whole thing might get resolved next week. Just another source of anxiety in my life.

I don't apologize for choosing a paper book format over faster and freer e-media. You may place equal weight on well-written words regardless of the media, but there are stodgy people who just don't trust it unless it's bound, and a lot of those people are legislators. If 100% of the anti-software patent propoganda is in digital form, the team does itself a disservice.

There's also some logic to the paper book format which we hipsters sometimes pass over. By publication, [Name of Institution] will have given the book to four peer reviewers, two editors, a proofreader, and a fact checker. They're gonna try their darndest to ensure that the book you get has no errors, on both the mechanical and the conceptual scales. For my part, I am totally paranoid about writing the book in a way that I am not about a PDF that I'd put online. It's trivial for me to fix something dumb that I say in a PDF, but there's nothing the future me can do if he cracks open my future book and finds a stream of embarassing I can't believe I said that statements, and that affects how cautiously the current me writes. I've re-read the entire book cover to cover at least two dozen times, and re-read each individual chapter at least that many times again. By contrast, I think I read my dissertation cover to cover about twice.

As a digression, this has a few implications for journals and other presses that are on their way online. The paper is entirely expendable, and good riddance to it, but the effort that goes in to the paper--the author's paranoid revisions, the peer reviews, the editor--all still need to be there to make for a work of lasting relevance and credibility. The fast publications have their place, and I think the people who discredit g>Wikipedia just because it's Wikipedia are morons, but good academic literature requires having people who dedicate themselves to an article and focus their best efforts upon it. [As a further digression, notice how far removed this is from the idea of the peer reviewer who is entirely anonymous and writes only one response to the article and then answers no questions. When the revolution comes, the current peer review system will be the first against the wall, paper or not.]

Readers need to recognize this as well: lots of people assume that if a paper is online, then it hasn't been vetted properly, but a good journal can indeed do good editorial work and then put the results online. We need to train readers to do the basic research to determine whether a journal is well-reviewed or not instead of just assuming paper=good editorial and computer screen=bad. It's hard because it's not black-and-white.

But in the mean time, here in a world of readers who don't put out the effort, I've got a paper book coming out which will impress lots of readers who normally wouldn't take my side of the debate seriously. For the rest of you who would take me seriously to begin with, I apologize that the book has been made relatively inaccessible for the sake of increased credibility to the stodgy.


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on Saturday, April 5th, Mary said

What is the title of the book that you are referring to in this blog?

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02 August 05. Lawyers living up to their sterotypes

This is just me venting because the Patent Reform Act of 2005 doesn't mention software patents; please don't take it as a reasoned essay. The smart money says the Act is gonna die in committee anyway.


I'm obviously biased, but I am increasingly annoyed by the pro-software patents side of the debate. There are loads of pro-software patent commentaries out there: Mr. PZ of Chicago, IL's little near-rant, the majority of the writings of Mr. AHH of somewhere in Germany (who has gotten better with time), the recent book by Mr.s AJ and JL, and even the extensive hard-to-link-to writings of some of my coworkers like Mr. KD of Chicago, IL. As far as I understand them, all of these guys argue that patent law should be applied to software without modification.

What do these guys all have in common? They have little or no idea how to code. They're patent lawyers/academics, and if they know what `Turing completeness' means, they're keeping it entirely to themselves. I don't mean to belittle their abilities---they are mostly lawyers in tech industries and have shown themselves to be smart cookies---but they ain't practitioners.

Time and time again, I read from lawyers `software is just like any other form of invention', and from programmers I read `software is vehemently different from other forms of invention.'

Judge PP, of London, UK cites another judge who has the modesty to state "I confess to having difficulty in identifying clearly the boundary line between what is and what is not a technical problem for this purpose. That, at least to some extent, may well be no more than a reflection of my lack of expertise in this field." But Judge PP does not cite him as having the wisdom to confess ignorance---no, Judge PP tells us he's thought it through and there is no solution: "Many have tried to frame an acceptable definition, but to the best of my knowledge none have succeeded. It is like the equally vexing question, 'What is Art?'. The hard truth is this: concepts of that sort have no existence."

That is, Judge PP observes that there is a debate about drawing some sort of line, and restates the debate in a manner that makes it impossible to resolve. This is not helpful. If the term `technical contribution' is too vague to be a useful guide in the question, throw it out and search for a new vocabulary.

The symmetric version of the argument would be for the engineer side to say `they're different for the following reasons' and the law side to say `no, those reasons are illusory for the following other reasons'. However, I have yet to see a pro-software patent author seriously address the distinctions like this. Usually, the response is `Oh, but if you look at it another way, it's all the same'. Again, crappy argumentation, because if two things are the same from one point of view but different from another, then they're just different---especially when the one who insists they're different is the practitioner.

Nor does the fact that different engineers draw the line in different places mean that all lines are invalid. The law says that you have to cross in the crosswalk, but some think that if you're walking on the line then you're outside the crosswalk, and some think you're inside. Therefore, the legal side would conclude, there is no definable concept of `crosswalk' and all jaywalking laws should be stricken from the books. Pick one definition, stick with it, and the occasional grumbling about how the line isn't quite in the right place will work itself out.

A further problem here is that the legal side naturally looks at it from a `here's how we lawyers do it' perspective and the programmers from a `here's how we engineers do it' perspective. But again, this is asymmetric, because the law should serve the industry, not the other way around. If how we've always done it in patent law differs from how the industry wants to do it, there had better be a really good reason for preserving the patent law. Sometimes there are, but the stock arguments about fostering invention aren't good enough, because the other side has a long list of reasons why it doesn't.

Another tip for argumentation: if you say `patents foster innovation' and the other side says `but software patents don't for the following reasons', then `yeah, but patents foster innovation' is not a valid response.

Next tip: if there are a few heads of industry and full-time lobbyists arguing a point, and a classroom of twelve-year-olds with blogs arguing the same point, don't focus on the kids. You do get to brush of the idiotic arguments, and there's some value in doing so, but you don't get full points until you've addressed the more serious points too. E.g., this guy critiques people who complain about the massive breadth of patent applications. He points out that they're just applications, and of course the applicant will ask for the moon---doesn't mean the Patent Office is gonna give it to them. He's right, and I too get annoyed by people who forget to distinguish between a patent application and a granted patent. But then a great deal of press is about the obviousness of granted applications, and the page doesn't touch on these. It picked off the easy argument and filled three screenfuls doing it, but it didn't progress serious debate.

The usual lawyer's response to the obviousness of granted patents, by the way, is to point out that the details of the patent are not entirely obvious, and are somewhat comparable with the detail of invention of physical patents. First, this is demonstrably false. Since this is a rant and not a coherent essay, I won't go into substantive details. But if the official rules indicate that these patents are good, and thousands upon thousands of experienced programmers think they're bad, then maybe it's time to change the rules. There are often cases where legal consistency makes sense but isn't intuitively obvious, but it is the burden of the law makers to maintain a valid justification for those laws.

In general, too many lawyers look upon the engineers whom the law is intended to benefit as idiots. Condescension abounds. Of course, the software industry isn't a monolith, and the guys who show up at these patent attorneys' offices are the software authors who (heart) patents. But to listen to those practitioners who agree and just brush off the majority still takes a little more closed-mindedness than I thought most really smart people were capable of.

One side is really pissed off, and the other side simply doesn't comprehend why, and further doesn't have any interest in finding out. They're the status quo, so I guess they don't have to bother.

Post hoc ps: Ran across another interview with an IP supporter.

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02 October 05. An old sign

Joe: Hi. I'd like to leave my cat here at the pet shelter.
Clerk: HOLY MOTHER OF PEARL THAT'S A LION!!!
Joe: You OK?
Clerk: That's a lion! You can't leave a lion here!
Joe: But the sign up there says "All cats are welcome".
Clerk: Yeah, but that's a lion.
Joe: Which is a type of cat.
Clerk: Dude, that is not what we meant.
Joe: Four legs, a tail. Purrs.
Clerk: You are not leaving that lion—
Joe: Cat. Her name is Della.
Clerk: You are not leaving Della here.
Joe: Come round here.
Clerk: No way!
Joe: I want you to look at Della's paws.
Clerk: I can see them from here.
Joe: And they look _just_ like the paws of the other cats you have here, right?
Clerk: But the mane! The teeth!
Joe: Why do you focus on those things? Just look at the paws: they're identical to those of all the other cats. Why do you have this shelter anyway?
Clerk: Well, uh, because society is better off when someone is looking after and caring for these unprotected cats.
Joe: Are you saying that you don't care about Della?
Clerk: No, no—
Joe: Are you saying that you only care about some cats but not others?
ClerK: No, but she'll eat the other cats.
Joe: Yeah, all cats are carnivores.
Clerk: But the other cats somehow don't eat each other.
Joe: The sign says `all cats welcome.'
Clerk: We didn't mean _lions_.
Joe: Who made that sign?
Clerk: It's been here for, like, since the place opened.
Joe: So you're saying the founders of this place were too dumb to think through the meaning of 'cat'?
Clerk: No, they just didn't think anybody would have the audacity to bring a lion in here. Look, as of right now, I'm changing the sign. All cats welcome except lions.
Joe: How can you do that! The people who founded this place didn't have a lion exception. That sign has been up for decades, has been stared at by many people wiser than you or me, and none of them wrote in a lion exception. What makes you so much smarter than all of them?
Clerk: Look at her. She's too wide to fit into any of our cages.
Joe: The sign doesn't say anything at all about breadth. Cats can be as broad as they want, and you have to accept them.
Clerk: This whole thing about wording the sign is dumb. The fundamental issue is what's good for the society and what the shelter is designed to handle.
Joe: I don't see how you can just invent a no lions exception out of thin air.
Clerk: Look, your lion ain't gonna be better off here, `cause the shelter wasn't designed for lions.
Joe: But other cats are fine here.
Clerk: But it's a _lion_.
Joe: which is a type of cat.
[Anne enters.]
Joe: Hey, Anne.
Anne: Hey, Joe. I have to give up Wolfie here. This place takes dogs, right?

As the reader can plainly see, this dialogue is all about software patents, and those who defend them. No matter how often you talk about the key differences between software and other industries, they just keep saying `but _I_ don't see any difference', and no matter how often you try to bring it back to the key questions of whether patents are good for economic growth, they keep bringing it back to the letter of current patent law. I've read serious patent advocates make the metaphorical analogue to every one of Joe's arguments at some point in the last few months. I can't count how many patent attorney's associations have explained that the Patent Act of 1952 already covered the software patent question. (OK, there are two: the AIPLA (PDF) and the IPO Association. I'd link to the IPO's statement of this, but the press release in question is their intellectual property, so you have to pay to read it.).

Bonus: business methods
Judge Rich, the guy who invented the concept of software patents in his 1994 In re Alappat ruling, did have one half-decent reason why he knew what Congress was thinking when it wrote the Patent Act of 1952: he's the guy who drafted it. The `nonobviousness' requirement is basically his idea.

He's a creative guy. In his 1998 State Street ruling, he also brought patents on business methods into existence. In fact, he's sort of bitchy about it: "[When the lower court made the ruling we overturn here,] the court relied on the judicially-created, so-called 'business method' exception to statutory subject matter. We take this opportunity to lay this ill-conceived exception to rest. Since its inception, the 'business method' exception has merely represented the application of some general, but no longer applicable legal principle..."

So who are the idiot judges to use such a principle? Who is he making fun of when he expresses his disdain for this "ill-conceived", "judicially-created" exception? Why, himself, because he excludes prior rulings which would have informed the software patent issue in In re Alappat using the business method exception. His ruling depended on saying that the court has consistently accepted certain off-the-wall patents, but there were two that were disembodied algorithms but were rejected; to keep his argument consistent, he brushed those two rulings aside by stating that their rejection was based not on the construction of the claims or what-have-you, but on the business method exception: "Maucorps dealt with a business methodology for deciding how salesmen should best handle respective customers and Meyer involved a 'system' for aiding a neurologist in diagnosing patients. Clearly, neither of the alleged 'inventions' in those cases falls within any Section 101 category." (31 USPQ2d 1555, 33 F.3d 1541, or just search for it)

How Judge Rich went from putting disdainful scare quotes around "invention" to putting scare quotes around "business method" in four short years is left for the reader to ponder.

Speaking of scare quotes
One of the favorite lines from the patenting lit of late is that "Anything under the sun that is made by man" is patentable. This comes from the Diamond v Chakrabarty ruling, which ushered in gene patents. Again, it cites the Congress of 1952 as stating this.

OK, so let's ask the Congress of 1952, notably, Senate Report No. 1979, 82d Cong., 2d Sess. (1952), which is what Diamond v Chakrabarty was citing: "A person may have 'invented' a machine or a manufacture, which may include anything under the sun that is made by man, but it is not necessarily patentable under section 101 unless the conditions of the title are fulfilled." From which we conclude that the Congress of 1952 is OK with patents on genes, software, and business methods.

A close reading of any of the rulings which ushered in these new systems reveals a great deal of sophistry which basically boils down to the judge stating "I would really like this new subject matter to be patentable. There is no subject matter exception. There never has been a subject matter exception. There never will be a subject matter exception." Typically, the ruling which changes everything is preceded by a few dozen rulings which say that the new subject matter shouldn't be patentable until the Congress comes out and explicitly states that patenting this new field really will make for a better economy. Then the new ruling comes along and says that no, the Congress of 1952 is very much OK with this new technology, even if they couldn't conceive of it even in science fiction. Clearly, this sort of argument requires a really, really, close reading of the pre-tech statutes. I'm uncomfortable that patent law is based on tea-leaf reading by the Judiciary instead of a direct statement from Congress.
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30 October 05. falsifiability

One of the oft-given responses to the question 'what is the key to scientific endeavor?' is falsifiability. It is what distinguishes science from religion, which makes claims which are clearly designed to be impossible to falsify (He meant it to be that way, regardless of how it is).

It is also what distinguishes science from mathematics. One can make false statements in both the world of math and the world of chemistry or physics or what-have-you, but one can verify the validity of a mathematical statement entirely based on the system you have written down. Through the appropriate manipulation of symbols, you can determine the statement's validity [Gödel aside], and once you've determined internal validity, you're done.

Compare with a statement to be falsified experimentally. Talk to any researcher (save for the few divinely blessed by the above-mentioned Creator) and they'll tell you about how often they wrote down a model, verified that it was consistent and true and that the numbers checked out, and then they built the darn project and it did nothing. It was falsified by something outside of the mathematical system as written down. The room was too warm, or the variance on the laser's power was too great, or there were odd impurities in the solution, or any of a hundred other things which you don't write down in a model until you try it out and find out that it's really important.


Figure One: False and falsifiable are not related.

Figure One makes one more attempt to make the point painfully clear: step one is writing down a mathematical model and checking whether the statement is false. This is a symbol-shunting exercise, where we check that we didn't add two and two and get five anywhere. Now we are somewhere inside the white circle, and can move on to step two: verifying whether our claim works experimentally. This is an entirely independent process from the symbol-shunting.

So there are loads of people who will tell you that if you're not doing something falsifiable, you're not doing science. This is not to disparage either mathematics or religion, but they ain't science. Some do indeed use the distinction disparagingly: if you're just writing down equations which are internally consistent, you're a theorist, which is kind of like a scientist but without any credibility.

Economists
can not do experiments. There are the ethical problems of how quickly one could screw up people or an economy, and there are the practical problems that getting everybody to all comply with your dumb idea may require billions of dollars. Therefore, all we have to falsify our claims is econometric techniques on existing data, and this is why it is of the utmost importance that economists remain firmly honest and clear and theoretically correct regarding all statistical techniques. If all falsifiability relies on your regressions, your regression techniques had better be sufficiently disciplined to falsify things. But this is a digression.

Computer scientists
, conversely, have it relatively easy. Somewhere up there, I described the two steps as internal verification and external verification, and when designing a computing system, there is no external world. We write down a system where i=i+1 always increments i by one, no matter what the weather or the state of k or the day of the week. That is, there is no external verification step. If you did the internal verification correctly and it doesn't work, it's the engineer's fault; buy new memory and run it again.

Of course, external data sneaks in some times. There are two means of falsifying the algorithm in regards to external data. One is the problem of dealing with formats and user data and boilerplate boringness like that. The other is based on claims of data transformation of the form 'this algorithm will take data of the given input form (ignoring the boilerplate boringness) and will then produce output which matches another form. I.e., another mathematical theorem, which just happens to be based on data from outside the system. This gives us a level of semi-internal falsification: all external verification depends on the external data stream, and if we define the data stream as part of the system then we're back to 100% internal verification.


IP implications
Patent law also distinguishes between mathematics and chemistry. A mathematical equation can not be patented; a chemical formula can. Many people who have written on patent law can't tell the difference between the two: well, they reason, you could write down a chemical formula just like you can write down a mathematical formula. It's a bunch of symbols, all identical, and therefore should all be identical under the law. When people make such arguments, I can't tell whether they're being disingenuous or sincerely don't get it.

But the falsifiability criterion shows a clear difference. Once the mathematical formula is verified to be true, in symbol-shunting terms, you're done; the true & verified circle has no falsified cut-out in math-land. In chemistry, the falsified cutout covers nearly the entirety of the white circle, leaving a small sliver for results which are both symbolically true and empirically verified. One can write down a thousand chemical equations such that the number of hydrogen, oxygen, and carbon atoms on the left equal the number of such atoms on the right, but the conversion from one to the other happens here in the real world for only a few of them. Helping people find which are the ones which will work is a key (dare I say the key) goal of the patent.

Now, some people say that if you write down a complete enough system, then it's all internal verification. The weather affects your chemical reaction? Then include it in your equations. Can't do the reaction in space? Include gravity. Et cetera.

Two ways of expressing the problem. First, the calculation may soon become more difficult than the plain old experiment, in which case you won't bother with internal verification and will just jump to external experimentation. Second, there are some things we human folk just don't know. The mechanics of Brownian motion are in some ways cataloged and written down, and in some ways are just anybody's guess. The patenting literature often refers to a person having ordinary skill in the art (phosita), and the question of external verification via experiment can theoretically be reduced to a sufficiently complex symbol-shunting exercise, but can only rarely be reduced to a symbol-shunting exercise that a phosita can actually write down and solve. Maybe it's all equivalent in theory (and this is a philosophy of science kind of question which is in no way resolved), but the practical reality is that an equation and an experiment are not identical.

I claim that under correctly interpreted patent law, only externally falsifiable inventions could be patented. Under current law, this is no longer the case. If you write down an equation with the appropriate variable names, you are free to patent. By not distinguishing between internal and external verification, it has become difficult to distinguish between pure math and chemistry.

I feel that about everybody who works in the sciences has no difficulty distinguishing between theoretical work and experimental work. That is, we have a concept which is a no-brainer among the practitioners but which patent law ignores. Is patent law correct to ignore it?

From the economic perspective, ignoring the distinction is folly, because writing down a good design which needs to stand up only to internal verification is an order of magnitude or two easier than a good design which needs to stand up to external verification. If you can ignore the rest of the world, points to ya, but why are we subsidizing your work in the easy stuff that you'd prefer to do anyway? If you write down an internally consistent system, what have the rest of us learned about the world at large?

Some make ethical arguments that both designing an internally consistent system and testing against the world at large are the same sort of work, engaging in some spark of creativity and then verifying the results. Who cares if it's internal or external verification, which is often an arbitrary distinction anyway? In fact, it's the theorists who are really being creative; the experimentalists are just copying the theorists or at best using an informed shotgun approach and trying everything. My apologies to the reader, but I'm counting this as a separate topic, which I'll discuss next time.


In terms of advancing the sciences, the internal and external are very different. Designing better methods for building an internally consistent system is a logic problem: given the premises of the system I've written down, what are the conclusions? Designing better methods for interacting with the world at large involves learning the rules of the natural world and how its rules can be mastered. In a generation, those rules will be folded into the phosita's internal system, but when first gleaned from the outside world, it is a real contribution.

The theorists are often characterized as the revolutionary ones, but it's often the case that the experimentalists are the ones actually speaking a new word, because they are more prone to haphazard external influences. This is where all the true apple-fell-on-my-head stories are: the guy who invented Velcro, the guy who worked out that his uselessly weak glue won't harm paper and thus invented Post-it notes, the guy whose gas cylinder kept getting gummed up with a slick polymer now known as Teflon, the guy whose sloppy lab technique led to the discovery that penicillin kills bacteria.

Better math and better designed systems are good things. We like having fewer moving parts. But this is a substantively different contribution from that made by systems which must interact with the outside world, and it is a mastery of the unexpected and the interaction with the natural world that requires the big cash and dedicated experimentation, and is most likely to provide benefit to others who are designing systems of their own. The patent literature that I have seen makes no mention of the concept of external verification, and I'm not sure if one could actually base a patent system on it. But it gives us another mechanism by which we can see that in the history of patenting was right to agree that mathematical results are not patentable, by giving us another line to draw between pure mathematical equations and chemical formulæ. It should come as no surprise that software falls on the unpatentable, only-internally-verified side of the line.

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on Thursday, November 3rd, the author said

People actually _do_ read this stuff and even comment; I just get all the comments by email. E.g., Ms. SW of Laurel, MD, whose job title is mathematician, points out that falsifiability in mathematics is not as simple as I characterize it to be. For example the four-color theorem was first posed as a question in 1852, but nobody knew whether it was true until a proof 124 years later—a proof which involved a computer trying to color in around 1500 maps. At which point, it starts to look a lot like experimentation. So the distinction is hazier than I characterize it to be here.

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20 January 06. One server, a thousand laws

I taped a Voice of America show earlier this week about Internet censorship by repressive governments. With four pundits and 22 minutes of air time, none of us got to say much. But I've cleaned up and linkified my notes on the things I would have said if I had twenty minutes to expound by myself; here they are.

First layer: the envelope.
This one is easy. If a user in China sends a request to Amnesty International's web site, the Chinese government will block it. There are only so many cables going in and out of China, and the government runs the routers attached to all of them.

The solution to this layer is via proxies. A proxy is a web middle-man: user sends request to proxy asking that it access amensty.org; proxy does the request and sends the result back to user. The Chinese government thus sees requests going to proxy.org, not amnesty.org, so it doesn't know to block them.

This works for about ten minutes, until the watchers work out to put proxy.org on the block list too. The guys at proxy.org then set up a new host at proxy2.com, which is open for a good while until it too gets blocked. Battle continues.

The latest advance here is Tor—The Onion Router. It is a network of encrypted proxies, so every time you connect to a proxy, you connect to a different one. Further, you go through several proxies before hitting your desired location, so the link between sender and receiver is still more difficult to detect. The requests go to places like harvard.edu, that would be difficult to block outright, and try their hardest to look like normal Web packets on port 80.

Policy implication: if you are in an uncensored country, have modest technical know-how and a reasonably reliable Net connection (the standard unlimited $40-a-month home DSL connection or better), set up a Tor server. If you are in a censored country, put a copy of Tor on your PC.

Second layer: the content.
This all started when the firing of the editor of the Beijing Daily was sacked for saying too many not-nice things about the Chinese government. 100 journalists walked out in solidarity, and one guy at the paper wrote about it on his blog on MSN spaces. Msn.com is registered to an address in Lake Stevens, Washington, just North of Seattle, meaning that the Chinese government doesn't have much jurisdiction over those hard drives. But they asked Microsoft to delete the blog, and Microsoft complied. And don't forget how Yahoo! helped the Chinese government put a citizen in jail.

To be binary about it, we're at a fork to two possible worlds. The first is one where a server needs to comply with the local laws at the source; the second is a world where every server has to comply with every law in every jurisdiction where its content can be viewed, which is all of them. Where are we along the scale? Where do we want to be?

The response from the U.S. government has consistently been toward the end of compliance with all local laws. The legally-oriented readers can weigh in on issues of interstate commerce, but internationally, the U.S. is very interested in censoring web sites that U.S. users can see. The first front for this is ethical, such as censoring child pornography. In terms of international relations, this is typically pretty easy because kiddie porn happens to be illegal in most of the rest of the world too. So the U.S. feds call up the Ukraine feds and they get together and shut down the illegal servers in Ukraine.

The second front is intellectual property, which is much more difficult because the USA has much more stringent copyright laws than most of the rest of the world. First, it is a felony to distribute—even to link to—the code needed to decrypt a movie DVD. This is only true in the U.S.A.; the rest of the world could care less. So when the MPAA, a private organization based in the U.S., pressured the Swedish government to prosecute the guy who first publicized the decryption code, they complied, but the judge threw out the case as entirely baseless under Swedish law.

In Russia, works copyrighted before 1972 are in the public domain, just as works in the U.S.A. from the turn of the century are in the public domain. That means that most of the Beatles' catalog is public domain there and locked down here. Apple Corps, the company that administers the rights (and isn't Michael Jackson a 50% owner?), refuses to put any of the Beatles' music in any non-physical formats, but download away from Russian sites. In fact, forget public domain, Allofmp3.ru has a fully-paid-up and legal radio broadcasting license from the Russian government, which Russian courts interpret to mean that it may distribute music via Internet. Again, they are 100% in compliance with local laws, but Mr. Jackson ain't getting his royalties when U.S. consumers get their music from Russian web sites.

The response, to this among other comparable issues, has been for the U.S. government to threaten to take away Russia's generalized system of preferences trade status. I.e., unless Russia changes its laws so Mr. Jackson gets his royalties, Russian goods will be taxed to the point of unsaleability in the U.S.A. This is all a threat that will not possibly come to pass, but it reveals the eagerness of the U.S.A. to meddle in the hard drives of foreign servers.

In many ways, the situation is very symmetric: country A's users see data from country B, and so the government of A threatens economic hardship on country B unless it compels its servers to comply with A's norms and customs. The asymmetry is that when A=China and B=U.S.A., the norms are basic issues of human rights, but when A and B are reversed, the norms are about royalty payments.

My pundit opinion: the U.S. government should be taking a firm stance that U.S. servers are beholden only to U.S. law. Microsoft would probably love this law. The guy in Seattle who had to sit there and censor a blog on behalf of the Chinese government did not want to do it, and I cite as evidence of this the fact that the cache was left up [If you're reading this more than a few days from now, that link won't work, but trust me...] A dumb little two-line U.S. law saying that U.S. corporations may not engage in censoring requests from a foreign government would buy MSFT's lawyers time, as they say `well, gee, China, we'd love to comply, but our hands our tied.'

However, I continue to opine, the government of the Bastion of Freedom will never pass such a law. First, there are less ethically-minded interests in the U.S.A.: all web pages in Tunisia are filtered thanks to software by Secure Computing of San Jose, CA. Second, by taking a strong stance that U.S. servers are beholden only to U.S. law and China had better butt out, it implicitly states that Russia's servers are beholden only to Russian law, and the U.S. had better butt out. I don't mean to imply that the U.S. government is incapable of hypocritical rulemaking, but it's still tougher than consistent laws, and to date the consistent route the U.S. government has taken is the one where royalties are likely to be paid and dissidents have no safe harbor. Recall my prior notes about how, as valid as we may feel U.S. copyright may be, protecting it in foreign lands is going to cost the U.S. consumer; it is also going to cost the Chinese, Tunisian, or Iranian dissident, who will see no support from the U.S.A.
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12 May 06. Patents: an empirical hole

In many of my little writings, I have taken as given that patents are a good thing. They foster innovation. And y'know, I basically believe this for mechanical and chemical inventions.

But I have no empirical evidence. I've searched the economics literature over and over again, and I have not found a single paper that provides empirical evidence for the statement patents foster innovation. There are enough logical arguments and models one way or the other, including my own, and everybody seems to generally have some idea about it, but hard data is 100% lacking.

Much of the problem is the simple issue of measuring innovation. For most studies of the form Does (fill in blank) foster innovation?, the researchers just use patent counts as a proxy for innovation, so they are basically asking Does (fill in blank) foster patents? Typically, they look at patents weighted by citations, in an attempt to ferret out the important patents from the more absurd cases. This too has its flaws, but whatever. But clearly, using patent counts as a proxy for innovation ain't gonna work when patent laws are the independent variable. We could count R & D expenditure, but that's rarely aggregated on a national scale, and company-level definitions and reporting preferences basically make the reporting garbage anyway.

Say that one Thursday morning, designs of word games become patentable. You figure the word game industry is small enough, and you could consistently total up R & D for every company in the word game industry before and after the change in law. All well and good, but what about substitution away from board game and publishing method and billboard building R & D? Your study measuring one small subset of the economy says nothing about whether total R & D spending is going up or down.

And hey, R & D does not equal innovation, as the solar power researchers have (sadly) shown us. Maybe we should be looking at rubber-to-the-road product introductions, but measuring that is even harder. Does the one in pink count as a new product? What about the one that has features disabled so it can sell at a lower price point?

Having established that the lack of definite measurement will guarantee that our data doesn't measure what we want, we can move on to the statistical problems in analyzing that data. In the ideal experiment, you change one variable, leave everything else constant, and measure the effect on the dependent variable. But this is rarely an option for a law. Option A would be to do a cross-country comparison. The regression shows that strong patent laws definitely lead to higher GDP, which is all very convincing until you realize that the only countries with strong patent laws are the USA, the EU members, and Japan, so the regression translates to saying that being the USA, EU, or Japan is good for growth. These regions are certainly doing OK for themselves, but there's no convincing regression that will prove that it is because of patents, because so very much changes from one country to the next.

Option B is the time series approach. The problem here is just like the cross-country problem: from one year to the next, everything in the economy is changing at once, so a jump could be due to a change in law or due to a hundred other factors. Sometimes there's a smoking gun: you graph the number of private schools, and it takes a sharp spike right when desegregation passed into law. [Quick---somebody send me a graph of this!] But there is no smoking gun for patents, because (1) shifts in patent law are never night-and-day (even at the founding of the US Patent Office, which sort of trickled into existence) and (2) shifts in R & D have never shown themselves to be particularly night-and-day anyway.

Oh, and to finish off Option B, we have the long-term question. Perhaps patents initially draw many firms into a field, but eventually, we find that one or two firms manage to score all the patents and then hold an effective monopoly that causes the system to shut down. So we need to look at innovation over the long term, which is again a tough one for our time series analysis tools to tackle.

So those are the hurdles that an empirical paper must surmount before it can claim that patents foster innovation, and I have never seen a paper that came even vaguely close. But I have never made the statement It's not in the literature and actually been right. So I turn to you, my dear readers. From those of you I know, you tend to be academic and smarter than the average Netizen, and if you've read this far you have some interest in IP. So do you have any empirical papers that convinced you of the value of patents? Do you have any innovative suggestions on how to measure innovation?
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on Friday, May 12th, Andy said

What about using productivity measures for innovation? Suppose there is no innovation. Then I can imagine productivity increasing for only two reasons: practice (aka learning by doing) and economies of scale as the country grows. I think that you could probably correct for both of these by including a time trend and the overall size of the industry. Everything else is almost by definition the result of innovation. That would of course include managerial innovations like Taylorism, TQM, etc., although I also think that those are legitimately innovative.

The only other possible problem is the importation of innovation -- American car manufacturers got a lot more productive after the Japanese showed them how to do it. However, the Japanese were genuinely innovative in the first place, so maybe you could use the timeliness of productivity growth to measure who first came up with the idea.

But I think that you should look into the productivity literature, probably someone else has had this idea before, but maybe the patent folks haven't cottoned onto it yet (or have they?).

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24 June 06. Patent reform update

[PDF version]

I'm not sure if I'd mentioned this before, but there is dwindling hope that the Congress is going to do anything about eliminating software or business methods. I am not making the following dialogue up:

Me: So what if you got 1,000 letters from programmers asking you to do something.
Congressional aide: We'd probably just think, `oh, they're just programmers.'

So we return to the Supreme Court. As noted in this op-ed, the Court has three (3) chances to fix patents, and of the three, the one that really matters is LabCorp v Metabolite, a case that directly raises the question of what should or should not be patentable.

On Wednesday, the Supreme Court disimissed it.

Why? That's the part where we try to read tea leaves. Here is the full text of the statement. For those who don't know their semilatin, a writ of certiorari (cert among the cool kids) is the Supreme Court's statement that it will hear a case.

The writ of certiorari is dismissed as improvidently granted. THE CHIEF JUSTICE took no part in the consideration or decision of this case.

That's all we get. The direct cause was procedural issues: the subject matter question wasn't argued in the lower courts, because the opponents of the patent knew that it was a losing argument, so it's debatable whether the Supreme Court gets to consider that issue or not.

The Chief Justice didn't participate, by the way, because his old law firm had represented LabCorp. Readers will recall that Justice Roberts's confirmation hearings included some amount of chiding of Mr. Roberts for not taking more care to prevent conflicts of interest.

As for the opposition
They were a little more chatty. Justice Breyer wrote for the minority (with Justices Stevens and Souter joining) explaining why the case should not have been dismissed.

Now, the entire concept of the software and business method patent was invented by a Federal-level court (the Court of Appeals for the Federal Circuit, CAFC), and one could even argue by a single judge (Judge Giles Rich). This was all in the mid-90s, and since then we haven't heard a word from the Supremes about whether the CAFC rulings that created these things (In re Alappat and State Street being the key rulings) were valid or not. But here's a snippet from the dissenting argument:

Neither does the Federal Circuit's decision in State Street Bank help respondents. That case does say that a process is patentable if it produces a “useful, concrete, and tangible result.” But this Court has never made such a statement and, if taken literally, the statement would cover instances where this Court has held the contrary. The Court, for example, has invalidated a claim to the use of electromagnetic current for transmitting messages over long distances even though it produces a result that seems “useful, concrete, and tangible.” [this was over Samuel Morse's patent on all of telecommunications] ...And the Court has invalidated a patent setting forth a process that transforms, for computer-programming purposes, decimal figures into binary figures-even though the result would seem useful, concrete, and at least arguably (within the computer's wiring system) tangible.

The first word we hear from the Court about the current breadth of allowable patents, albeit from a minority, strongly disapproves. For the computer geeks out there, notice that the idea that a computer's wiring makes a mathematical algorithm into a physical device is explicitly addressed and rejected.

So what will the Court do next? Personally, I have no clue. It seems clear that at least a few members of the Court are seeking out a new test case to take on the issue of patentable subject matter. But whether cert will be granted in the future depends on why cert was ruled to be “improvidently granted” in this case. If it was truly and honestly because of mere procedural issues, then there's no roadblock to future cases, and the lawyers presenting cases in the lower courts will be happy to present subject matter arguments in the hopes that they'll move on to the top leauge. But if LabCorp was killed on a technicality becaue a majority of the Court realized that the only sensible way to rule on it would be to seriously narrow the current scope of patent law, then we're stuck.




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08 August 06. The abject failure of IP PR

[PDF version]

Intellectual Property advocates are a group that all of you should be watching, as an example of how not to do public relations.

The best evidence of this is the emergence of the Swedish Pirate Party, an organization dedicated entirely to contravening what it sees as oppressive intellectual property laws. It's pretty bad news when people form political parties to oppose something nobody had ever heard of a few years before.

Since the technology is in place, IP holders need to win hearts and minds and show that they're reasonable people if they want people to stop copying their media, and the rise of groups like the Pirate Party show that they are very much not doing so. In fact, it seems like the more the public complains about IP laws, the more IP advocates push for more extreme measures and rhetoric.

The IP industries have been in the midst of this PR disaster for the last several years. The Sonny Bono act passed in 1998, extending copyright to 95 years, but at the cost of giving opponents an easy target. Is there an ethical argument for 95 years of copyright protection--that you can make to a twelve year old? The public doesn't see how such wide scope fosters new creative works, and begins to question whether more sensible copyright rules might be suspect as well.

The software/business method patent issue has perhaps been the worst thing to happen to patents in a century. Given that there are so many examples of patents that seem so obvious and only seem to block competition, stock arguments that Patents Foster Innovation are wearing thin. People who used to know nothing about patent law now regularly write their Congressperson demanding that the entire system be shut down, and our IP advocates have In re Allappat and State Street to thank for that. Advocates point out that there are subtleties in “one click”-style patents that make them useful and distinct from prior art--but are unable to explain that to a lay-voter.

Software and business methods have brought public focus to a corner of the law that used to manage itself; if we want patent law to survive, we should acknowledge that some things should not be patented. There are many IP advocates who (1) want patent law to remain a one size fits all system, (2) want it to remain strong for pharma and electronics, (3) want it to cover web site designs, and (4) want the public to be OK with it. You can have at most three out of those four. We used to have (1), (2), and (4), but then the patent courts got greedy and made up (3), and suddenly there are prime-time news spots about the disaster that is patent law. (1) and (2) are therefore now under review by Congress and the Supreme Court, and (3) and will be soon.

The U.S. has had PR issues as a whole, with much of the world seeing it as an imperialist aggressor. E.g, the Pirate Party was originally organized around a BitTorrent-oriented web site. The Pirate Bay is royally pissing off U.S. IP-holders, but is doing nothing illegal under Swedish law. The police seized their servers a month or two ago, brought in their best prosecutors, and still failed to find reason to halt their operations. So, back to the PR disaster that is current IP law: how do you explain to a Swedish twelve year old why she has to comply with U.S. IP law?

And I'm not the first to point out that the RIAA is shooting itself in the foot with its never-ending lawsuit campaign, which wholeheartedly supports the caricature of IP as being written by and for Hollywood fat cats.

Oh, and a final note to the RIAA: Pirates of the Caribbean II has grossed $361 million as of this writing. Calling kids pirates is not going to make them feel bad about illegally downloading their gangsta rap albums.

The best thing IP lawyers could do for themselves is to indicate that they are capable of moderation. I read many IP blawgs on a regular basis, and I can recall about one (1) instance where an IP lawyer said that IP law has tilted too far in favor of rights-holders.

I'm loathe to link to trolls, but here is a post about how dumb the Supreme Court is, and there are many more where that came from. I am not well-versed in every field of law blogging, but I have never seen so many lawyers insist that the Supreme Court is run by idiots. Sure, all of us have that one Supreme Court case that seems totally moronic (at least Dred Scott), but to say that the Justices have no comprehension of a major field of law seems a bit beyond the pale. The explanation for the rift is obvious: the trolling IP lawyers care only about patents, while Supreme Court justices care about patents and their effect on the economy at large.

My impression is that IP lawyers are happiest when they're left alone, and all those mean judges who try to balance economic outcomes and those dumb voters who write their Congressperson about copyright go back to fighting over abortion. The best way to go back to IP law being about the things IP lawyers love to debate, like the applicability of the exceptions of 35 USC §271(g) to hearings under 19 USC §1337, is for IP lawyers to concede ground on the recent expansions to IP protections that the public has found to be so onerous.

Policy recommendations: the various IP practitioners should acknowledge that they are in the midst of a PR disaster, and comport themselves accordingly, rather than continuing to berate the public for not seeing it their way. The RIAA would maybe improve its public perception if it stops suing children for violating laws that they don't understand. Patent attorneys need to start pointing out the frontiers of what should not be patentable. Anybody who says that artists won't produce unless they have a 95-year monopoly is just not credible. There are many steps to reversing the PR disaster, but I believe that the first step is for IP rights holders to publicly display that they have a reasonable view of what should be in the public domain and what is fair use.




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02 February 07. My preface

[PDF version]

My stats textbook will be available in print and as a free online PDF.

Now, as somebody who keeps writing books, I can't tell you how great is the temptation to meta-write. To have a nice, long intro about why I wrote the book and who I have in mind as the reader and what problems I surmounted in writing it and other things that are of marginal interest to people who aren't the author. It's a nice form of procrastination. At the extreme, you have this guide to Ruby, which goes for a long time before you get to the subject and even then has frequent meta-sidebars. A textbook needs to have this, because a textbook intro is actually an extended advertisement explaining to professors why they should adopt the text for their class, but I managed to keep the intro down to 14 out of 400 pages (equals 3.5%), which I count as OK in the context.

So I wrote the following intro to the online version, and then realized that it's all meta-writing--even a bit maudlin--and so scrapped it. [Maudlin, from the OED: Having reached the stage of drunkenness characterized by tearful sentimentality and effusive displays of affection.]

Now that you have the context--the meta-meta-writing--here's the intro that the online edition will not have.

Nobody ever believes me when I tell them I grew up poor. But it's true: my family didn't clear the poverty line until I was about twenty years old. Needless to say, my personal library was rather limited, primarily consisting of whatever was under two bucks at the used book store, and a nickel copy of The Magic House of Numbers (The Amazon reviews agree with me on this one) that my brother bought from the Bottenfield Elementary School library clear-out sale. [The fact that it was my brother's made it all that much more intriguing, and I read through it many times.] I spent endless hours at the local library, or sitting at the back of the bookstore at the strip mall next to our apartment complex. The employees there just wheeled their carts around me as I sat on the floor, reading books from cover to cover.

Somewhere around 19 I got my first computer, which I bought using my income from a summer as a bike messenger. I already knew the basics of working the thing, thanks to a Champaign Park District BASIC course, a 10th grade PASCAL class, and many hours at a friend's house. It wasn't cheap, but now that I had that laptop, I had the tools to create whatever world I wanted.

I spent a year of college at the London School of Economics, which my university paid for via my need-based financial aid. At the airport, I passed through the UK customs agents with a letter stating that I had the finances necessary to pay for my life in London, but that was a blatant lie. My housing and tuition were paid for, but food was not. Fortunately, the computer science department paid me under the table to teach Mathematica tutorials. In the evenings, while everybody else was out dropping another ten quid at the bar, I was at home with that laptop, writing papers and models, and doing haphazard and completely unpublishable research. In many ways, it was a great year.

As you can see from this book, I've learned a modest amount of math and computational stats since then. And all my progress has been possible because mathematics is free.

Because of my own experience, I want mathematics and tools for mathematics education to remain as free as possible. When, in the tradeoff between lower property taxes and better public schools, a person tells me they prefer lower taxes, my skin crawls--especially when they justify it by saying their kids go to a private school so public school quality doesn't matter. I have written extensively in opposition to the court rulings that made it possible for mathematical algorithms to receive U.S. patents because--beyond its legal and economic senselessness--the thought of paying a licensing fee for a mathematical algorithm seems fundamentally unethical to me. No one should be able to bill you for math you have done yourself.

This book is based on free software partly because I placed high priority on writing code that is as portable as possible, and if you need to jump through licensing hoops to transfer your work from one computer to another, then it is not portable. But the choice of tools is also based in that conviction that mathematics should be free. A book about how to use a thousand-dollar stats package is of limited use, and gives the vague impression that mathematics is a sport for those with a budget.1 It points to one more little barrier between a curious kid with a used PC and the mathematical world.

There's a joke (except it's true) that Russia is a powerhouse in mathematics because Russians didn't have the money to do any other kind of science. Computational modeling is also a science anybody can do, because fifty bucks will buy a used computer that could easily host any of the tools in this book. The One Laptop Per Child project hopes to distribute basic computers to children throughout the developing world. Based on the specs as of this writing (500 mHz processor, 128 MB RAM, 512 MB storage), the tools here would comfortably run on an OLPC laptop.

I've read a lot of textbooks in the process of writing my own, and I increasingly think that the intended audience for any textbook (whatever the author may claim) is the author, some number of years ago. The methods in this book work for me in the present day, where I need efficient and effective tools for projects with hundred thousand dollar budgets at the world's largest organizations. But I have made certain that these methods remain useful to somebody like the earlier me, who just had a low-end laptop, a sporadic Internet connection, and a desire to learn and explore.

I understand the economics behind the seemingly high price of textbooks, and I know that this book will be available at most academic libraries (because libraries often subscribe to a press, meaning they get everything the press publishes, good and bad). But having the book available anywhere and to anyone is one less barrier to mathematics education for those who do not have the traditional support systems behind them. And that is why, with the gracious permission of [academic publisher], this book is available as a free download.



Footnotes

... budget.1
Yes, I know it's very easy to break the license and get a copy of STATA or Mathematica or what-have-you, but why bother when there are entirely above-board ways of getting free software?



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on Thursday, February 8th, Miss ALS of San Diego said

i had a comment, but it was incoherent.

like me.

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04 April 07. Philosophizing from the bench

[PDF version]

I have written elsewhere about how there is no economic justification for patents on software or business methods, and how the legal basis of such patents is based on a very specific (and in my opinion, false) reading of prior case law.

But there is one final question regarding such patents: are they ethical? To answer this question, we must answer another entirely unanswerable question: do people invent mathematical results or discover them? Are the symbols mathematicians write down a reflection of some innate structure of the universe, or just human symbols manipulated using human rules?

One could find people on all levels of the spectrum between math as pure invention and math as pure discovery, but this has not always been true: before about two hundred years ago, mathematical results were firmly a part of nature that humans stumbled upon. In such a context, the ideal of granting a patent--an ownership right--in a mathematical algorithm would have been taken as simply absurd, an unethical and unenforceable handing over of a piece of nature to one person. The monopolies now granted for mathematical algorithms are thus the product of a few centuries' worth of development in mathematics and our attitude toward the subject.

Unfortunately, software patents do not represent the cutting edge in modern sensibilites regarding the nature of mathematical algorithms. Instead, they make sense only via a school of thought that was prevalent from the late 1800s until it was discredited in 1931. Thus, the courts have tried to keep the law up-to-date by revising the scope of patent law from where it stood in 1790, but they remain behind the times nonetheless.

The realists
The realist view originated with Pythagoras (about 582-507 BCE). Pythagoras observed various regularities, like how the sound of a plucked chord made the most harmonious sound when played in concert with a chord exactly half its length (what we now call an octave apart), and then with a chord a third its length (a fifth apart), et cetera.1 He concluded from these pleasing regularities that all of the world is a reflection of a set of harmonious mathematical relationships--a music of the spheres.

Plato (born about 75 years after Pythagoras's death) picked up on the Pythagorean's geometrical obsession. If you've ever taken a philosophy class, you are familiar with Plato's view that the forms we see are vague, secondary reflections of a perfect ideal--nature is a reflection of mathematics. Plato said that people remembered mathematical results, because they are imprinted in our minds and we need only get the right signal to remind ourselves of the mathematical truth inside ourselves.

Around this time, it was a popular trick to try to try to write down as many theorems as possible from the basic axioms of geometry. The most famous such attempt is Euclid's Elements. This is an oft-told story, but here are the first five basic assumptions Euclid needed to derive all of geometry:

  1. A straight line segment can be drawn by joining any two points.
  2. A straight line segment can be extended indefinitely in a straight line.
  3. Given a straight line segment, a circle can be drawn using the segment as radius and one endpoint as center.
  4. All right angles are congruent (i.e., equal).
  5. If two lines are drawn which intersect a third in such a way that the sum of the inner angles on one side is less than two right angles, then the two lines inevitably must intersect each other on that side if extended far enough.

If you're like most people, you were nodding your head up until you got to that last one, which is something of an eyesore in its lack of simplicity; we'll get back to it shortly.

2000 years pass. The history books typically characterize these as periods of religious fervor, but that doesn't mean that they're periods of scientific inactivity. However, the realist viewpoint took a small twist: it's not that nature haphazardly reflects mathematical ideals, but that the Divine Creator used math to design everything. But people like Copernicus and Newton still saw themselves as just marvelling at how neatly the Divine Watchmaker designed the mathematical world around us, and still placed themselves in the role of observer rather than inventor.

The formalists appear
Back to that fifth assumption. Some tried to derive it from Euclid's other axioms. They would begin by assuming that the fifth assumption is false, and then search for a contradiction to the other axioms. But a funny thing happened: under some means of constructing a system where the fifth axiom is false, no contradictions turn up. One could construct a whole world that in many ways looks absolutely nothing like Euclid's. Gauss, the inventor/discoverer of Gaussian elimination, the Gaussian distribution, Gaussian quadrature, and et cetera, was one of many in the mid-1700s to question that fifth postulate. What if you could have lines point toward each other but still never meet? We thus get non-Euclidian geometry, which caused something of an explosion.

This was the first chance for the formalist viewpoint to take hold. Many of these non-Euclidian geometries didn't describe anything we have seen here on Earth. Some got the last laugh a few centuries later when Einstein showed that non-Euclidian geometry sometimes did a better job of describing reality than Euclidian, but at the time there was the gnawing question that maybe these axioms and their derived results were just a set of amusing inventions--human-made symbols that reflect nature only by sheer luck, if that.

The project of mathematics became the problem of designing systems of symbols and their manipulation that are interesting in and of themselves. Of course, such a system should not self-contradict, and reflects at least some of our intuitive beliefs, like how if A = B and A = C , then B = C .

Here in the present day, mathematical geometry courses build the subject in a series of steps. They start with defining sets, then establishing the characteristics of open and closed sets, then describing networks of those (aka topologies), and then adding in neighborhoods (aka manifolds), and only then can the concept of distances (metric spaces) come in. So what Euclid took to just be space, we take to rely on definitions of sets, algebras, topologies, manifolds, and metrics.

The larger project is to have a unifying set of symbols, beginning with sets, that would allow one to trace the most advanced mathematical ideas all the way back to basic manipulations of sets. Like the Euclidian craze of the Greek era, the late 1800s-early 1900s brought about a flurry of people writing derivations of as much as possible from basic axioms of sets. The stand-out attempt was Whitehead and Russel's Principia Mathematica, which went pretty darn far in starting with very simple symbols and building up basically everything.

It will be relevant below that Bertrand Russel, the paragon of the set theoretic formalization of mathematics, was not very happy with his symbolic designs:

I wanted certainty in the kind of way in which people want religious faith. I thought that certainty is more likely to be found in mathematics than elsewhere. [...] But as the work proceeded, I was continually reminded of the fable about the elephant and the tortoise. Having constructed an elephant upon which the mathematical world could rest, I found the elephant totterling, and proceeded to construct a tortoise to keep the elephant from falling. But the tortoise was no more secure than the elephant, and after some twenty years of very arduous toil, I came to the conclusion that there was nothing more that I could do in the way of making mathematical knowledge indubitable. (Russel, 1956, pp 54-55)

Russel thus raises a natural question: how far can all this go? Kurt Gödel famously showed that it's not as far as one would hope, using the formalization of the following simple declaration. This sentence is false. If that sentence actually is false, then the sentence is proclaiming a true statement--which means that the sentence is actually false--which means that it's true....

Gödel's version was the statement “This statement is not provable using the logical system L .” Name this statement S . If S were provable using the system L , then the statement would be false, meaning that L has proven a contradiction. If S is not provable using L , then L is incomplete, in the sense that S is a provable statement (it is not provable using L , as promised), but L can not prove it.

This was a horrible blow to the formalists. However powerful their system, there would still be simple logical chains like the last paragraph that prove things that the logical system can not handle. The formalist movement basically lost credibility. The proof that there is something to mathematics that our symbolic systems can not handle clearly advocates for the realist side of the spectrum.

The derivation of computing
At this point, the symbol-manipulators did not entirely give up, but instead rephrased the question: having accepted that for any logical system some expressions are not evaluable, what mathematical expressions are evaluable? Two people simultaneously provided suggestions of determining what is evaluable, in 1937-8. The first, Alonzo Church, invented a means of writing expressions, claiming that his writing scheme covered all possible evaluable operations. Alan Turing took it in a slightly more imaginative turn: he described a machine with a tape (memory) and a head that moves along the tape and modifies the data written thereon; if Turing's machine can evaluate the expression in finite time, then it is evaluable.

That is, Turing described a computer, and said that if something is evaluable via computer, then it is evaluable via the systems of set theory as well. In fact, every modern computer out there is equivalent to Turing's machine and Church's lambda calculus (which are themselves equivalent). Barring highly specialized languages, virtually every modern programming language is Turing equivalent, meaning that it is equivalent to a Turing machine, the lambda calculus, and all of the other Turing equivalent languages. That means that programs written in a modern programming language are equivalent to mathematical expressions using traditional mathematical notation.

Thus, modern computing has its roots in the set theoretic attempts to write a language that describes everything, which in turn has its roots in the formalist perspective that mathematical symbols need not reflect any inherent logic of the universe.

In computing, the bias toward formalism is still heavier, because programs look like human designs. Further, they are often describing systems built by humans. Geometry is Greek for “measuring the Earth,” because it was first used (by the Egyptians) for surveying land, but as the mathematical and computational edifice grows taller, it becomes increasingly difficult to see the ground below.

The final step in formalist philosophy
The birth of formalism laid the foundations for the software patent.

There is an understanding that laws of nature may not be patented, which persists to this day. The law of gravity, or a newly discovered element, are not human inventions, but discoveries regarding nature. Within the law of nature exception lay a sub-exception: mathematical algorithms may not be patented. In the terminology above, setting mathematics as a subset of nature is clearly and firmly a realist view. This is appropriate, because Thomas Jefferson wrote the first patent law in 1790, while Gauss had written his development of non-Euclidian geometry around 1820-1830. The realist school was thus the prevalent (and only) understanding of mathematics when the patent law was written. Legal scholars often ask what the “congressional intent” was behind a bill, and it is effectively impossible for the congressional intent to have been that mathematical results are not laws of nature.

Now let us skip forward to 1980, at the founding of the Court of Appeals for the Federal Circuit (CAFC), to consolidate patent hearings (and some other issues) into one specialist court. Several of the judges on the CAFC bench are assigned to hear only patent cases--cases about human inventions. Many of them are former prominent patent attorneys. Therefore, it is no surprise at all that with regards to mathematics, they are formalists.

Let us open with a law review article from 1986, five years after the Supreme Court ruled for the third time that mathematical algorithms may not be patented: “A mathematical or other algorithm is neither a phenomenon of nature nor an abstract concept. [A mathematical] algorithm is very much a construction of the human mind. One cannot perceive an algorithm in nature. The algorithm does not describe natural phenomena (or natural relationships).”(Chisum, 1986) This passage is clearly a product of the towers of elephants and tortoises above. Russel's Principia Mathematica was published in 1913, and this law review passage arrived 73 years later. Given the speed at which attitudes toward mathematics move, this perspective is downright trendy.

In the courts, the origins of the software patent are typically traced to the ruling written by Judge Giles Rich in In re Alappat (33 F.3d 1526, 31 USPQ2d 1545, 1994), which split the mathematical algorithm exception off from the law of nature exception--and then denied the existence of the mathematical algorithm exception:

[T]he Supreme Court explained that there are three categories of subject matter for which one may not obtain patent protection, namely “laws of nature, natural phenomena, and abstract ideas.” ...the Supreme Court also has held that certain mathematical subject matter is not, standing alone, entitled to patent protection. ...A close analysis ... reveals that the Supreme Court never intended to create an overly broad, fourth category of subject matter excluded from Section 101.

Clearly, this discussion makes no sense if a mathematical algorithm falls into the categories of “law of nature, natural phenomena, and abstract ideas.”

Having split off mathematical algorithms as a separate category from things existing in nature, the Federal Circuit killed it off by 1999. AT & T v Excel (172 F.3d 1352, 50 USPQ2d 1447, 1999), cited earlier CAFC rulings to determine that: “the judicially-defined proscription against patenting of a `mathematical algorithm,' to the extent such a proscription still exists, is narrowly limited to mathematical algorithms in the abstract.” Such a narrow limitation is no limitation at all, because it is trivial to state “I claim a machine on which is loaded an algorithm to...” before any purely abstract algorithm. Indeed, patents granted based on such wording abound.

But the world is not formalist
As you can see, the CAFC has positioned itself at the formalist extreme of the formalist-realist spectrum. However, since Gödel, few practitioners of math and computer science placed themselves at such an extreme.

Dedekind was a mathematician instrumental in the development of set theory, and was thus essential to the formalist camp. In the opening to his notes on differential calculus (Dedekind, 1901, pp 1-2), he cast himself as a formalist, complaining that resorting to intuition “...can make no claim to being scientific, no one will deny. For myself this feeling of dissatisfaction was so overpowering that I made the fixed resolve to keep meditating on the question till I should find a ...perfectly rigorous foundation for the principles of infinitesimal analysis [differential calculus].” But there his formalism toward differential calculus gives way to his realist belief, that he was working to “... discover its true origin in the elements of arithmetic and thus at the same time to secure a real definition of the essence of continuity.”

I have not yet mentioned the intuitionist movement, which Kline (1980) traces back to the early 1900s. The position of the intuitionist is closer to the realist: we all know what zero and one are, an we all have an idea of what addition and multiplication mean, so we should build from there. Causality is something about which we all have an intuitive grasp, but which is simply impossible to pin down using statistical tools. Judea Pearl, the author of the standard reference on causality (Pearl, 2000), is entirely unfazed by the fact that his chosen subject is completely ungrounded: “For me, the adequacy of a definition lies not in abstract argumentation but in whether the definition leads to useful ways of solving concrete problems. The definitions of causal concepts that I have used in my book have led to useful ways of doing things....”2

So while patent law has followed the single thread of formalism to the exclusion of all other threads, the typical person having ordinary skill in the art of computing and mathematics believes a mix of the realist, the intuitionist, the formalist, and perhaps even the theological. Therein lies the conflict: Judge Rich was philosophizing from the bench, and mandated that patent law shall take the formalist viewpoint that mathematics is the human manipulation of human symbols--but mathematicians themselves have prevalently had the view that strict formalism is an inaccurate description of mathematics and computing since the 1930s. Practitioners thus see the patentability of software and mathematical results as based on a false--and even condescending--view of their chosen field.

@book{russel:portraits,
author="Bertrand Russel",
title= "Portraits from Memory, and Other Essays",
year= 1956,
publisher="Simon and Schuster"
}

@book{dedekind:essays,
author="Richard Dedekind",
title="Essays on the Theory of Numbers",
year= 1901,
publisher="Open Court Publishing"
}

@book{kline:certainty,
author="Morris Kline",
title="Mathematics: the Loss of Certainty",
year= 1980,
publisher="Oxford University Press"
}



Footnotes

... cetera.1
See Donald Duck in Mathemagic Land.
... things\dots.”2
http://www.mii.ucla.edu/causality/?p=33



[link][2 comments]

on Sunday, April 8th, Miss ALS of San Diego said

Well this post was just delightful. thank you, mr. blair.

on Thursday, April 12th, GK said

I once heard about "NOA", a Natural Ontological Attitude, which scientists and technical people have. I think this means they generaly accept formulas and theories that seem to work as having reality, without pushing too hard on the philosophical definition of truth.

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30 April 07. Pricing information

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Since it's interesting, we'll begin with extradition. Extradition is not trivial. It's an infringement upon a state's sovereignty to forcibly remove a person, so there are treaties that allow extraditions only under certain conditions. The Australia/USA treaty lists 29 types of crime for which a person can be extradited, and they ain't pretty:
1. Murder [...].
4. Unlawful throwing or application of any corrosive or injurious substances upon the person of another.
5. Rape; indecent assault, including unlawful sexual acts with or upon children.
6. Illegal abortion.
7. Procuring, or trafficking in, women or young persons for immoral purposes; living on the earnings of prostitution.
9. Bigamy.
10. Kidnapping; child stealing; abduction; false imprisonment.
13. Larceny.
14. Embezzlement.
17. Extortion.
18. Receiving any property, money or valuable securities knowing the same to have been unlawfully obtained.
22. Arson.
25. Piracy, by statute or by law of nations; revolt on board a vessel against the authority of the master of the vessel.
29. Dealing in slaves.

So your average shoplifter is safe; we're talking about people who are selling women and children into slavery or are true and honest pirates (a breed which still exists in the seas between Australia and Asia). Major financial affronts like 17 & 18 are in there too.

Mr. Hew Raymond Griffiths is a UK citizen living in Austalia, and as far as I understand it, he's never been to the Western Hemisphere. But he's just won himself a `round the world ticket with accommodations for up to ten years, because a court in Virginia found him guilty of copyright infringement, and the Australian government has agreed to extradite him.

I'm not sure if the Australia/USA treaty applies here, since the guy's a UK citizen, but you get the gist.

As you can imagine, this guy wasn't just making mix tapes for his pals. He was running a warez site with heaps of software free for the taking. If you're not familiar with warez sites, they're one of the dark corners of the web, mostly inhabited by adolescents trying to prove their abilities by cracking security codes, hosting big files (like an operating system or Photoshop), or just putting up lots of porn. This is where `leet-speak came from, and everything about warez sites and their denizens is a turn-off. They also tend to pick black backgrounds and tiny fonts.

So let this be a lesson for any of you who have CSS that specifies less than a ten-point font for your body text: the courts have no sympathy at all. It's an easy win for the prosecution, because warez site are so unattractive to normal folk like judges and juries.

Pricing nothing
But as above, extradition doesn't happen for being a punk--it takes big money crimes, with dollar figures up around seven or eight digits. And here we run in to a problem. How do you evaluate intellectual property?

Let me give you another example: my think tank is a 501(c)3 nonprofit, so contributions and donations are tax deductible. Microsoft, Inc. donates server software to the think tank, which is one factor in why we have a famously slow and messy web site. At the maximum, it cost Microsoft maybe $100 to send us the software, what with the jewel cases and little holograms on the licenses and the bubble wrap. Given that, how much do you think they're deducting from their taxes for mailing us those CDs?

I'm not in the mood to check right now, but last time I looked at Microsoft's annual report, their intellectual property was one or two percent of their assets, where one percent of Microsoft is more than I'll ever be worth. How did they come up with that? They are reporting to shareholders, the SEC, and anyone else who cares that their asset base is 1% larger than their physical plant. There are accountants over in Redmond right now trying to work out how they can claim as large an asset base as possible, and intellectual property (IP) is just a gimme for them.

And not to pick on Microsoft, there are companies where IP is up there around 50 or 90 percent of their asset base.

IP is not the first thing in the world where evaluation is difficult. I had a job that involved evaluating infrequently-traded options for a brokerage firm, and there were yelling matches over it. The equations require an estimate of the volatility of an asset's price, and there are several ways to make that estimate. But at least there are generally-accepted methods to do it, albeit a few too many.

The only method for pricing intellectual property is by current market rate. This is common enough in asset pricing, but it's problematic in this case, because the distance between market rate and cost of production is so large. If Microsoft sent the think tank ten copies of the server software instead of one, it'd be sending ten times the market value, so it should be able to deduct ten times the amount from their taxes. Gosh, why not just send a case of CDs and take the year off from paying taxes.

Our intuition is that the recipients value the items at less than full retail cost. Maybe they'd buy the first copy for full price, but the willingness-to-pay falls precipitously from there. But now we're back to unobservable value, since we can't ask the recipients what a second or third license is worth to them. But it also seems unfair to say that Microsoft can only deduct the price of printing and shipping.

The standard for damages in cases like that of Mr. Griffiths, as I understand it, is to claim full retail price for downloads, which is why Mr. Griffiths's web work is sufficient to merit extradition proceedings usually reserved for child molestors: the plaintiffs claimed $50 million in damages. The nice people at the RIAA often cite lost sales figures that assume full retail price for every downloaded CD when arguing that the Department of Justice should allocate its scarce resources to enforcing copyright laws. Especially with the losers on the warez sites, this is a false assumption. If a kid who makes a few thousand a year from part-time at the Seven-Eleven can't get a free copy of Photoshop, he wouldn't buy it retail (it's very pricey). He'd just get Linux.

This is not to say that none of the people who downloaded from a warez site would ever buy retail. Sales were surely lost, but there is really no way to know whether lost sales make up 1% of the downloads or 99%.

By the way, the operators of warez sites rarely make any money. They just do it to be a leader among maladjusted adolescents. But, you figure, this has nothing to do with whether the thief profits--if a gent steals some jewels to give to his gal, it's still theft. The Supreme Court commented on this very argument in its ruling in Sony v Betamax, which was a case over whether recording a TV show was theft of intellectual property. Since it is mostly applicable to the situation at hand, here is footnote 33 in full (minus citations; VTR = video tape recorder):

It has been suggested that “consumptive uses of copyrights by home VTR users are commercial even if the consumer does not sell the homemade tape because the consumer will not buy tapes separately sold by the copyrightholder.” Furthermore, “[the] error in excusing such theft as noncommercial,” we are told, “can be seen by simple analogy: jewel theft is not converted into a noncommercial veniality if stolen jewels are simply worn rather than sold.” The premise and the analogy are indeed simple, but they add nothing to the argument. The use to which stolen jewelry is put is quite irrelevant in determining whether depriving its true owner of his present possessory interest in it is venial; because of the nature of the item and the true owner's interests in physical possession of it, the law finds the taking objectionable even if the thief does not use the item at all. Theft of a particular item of personal property of course may have commercial significance, for the thief deprives the owner of his right to sell that particular item to any individual. Time-shifting does not even remotely entail comparable consequences to the copyright owner. Moreover, the time-shifter no more steals the program by watching it once than does the live viewer, and the live viewer is no more likely to buy prerecorded videotapes than is the time-shifter. Indeed, no live viewer would buy a prerecorded videotape if he did not have access to a VTR.

Pricing IP at market rates is based on metaphor to physical goods, but as our intuition and the Supreme Court observe, this metaphor doesn't really work out, partly because consuming information without paying does not prevent the owner from continuing to sell that information elsewhere, while the owner can't sell stolen physical goods.

As usual, I have no conclusion. You can decide for yourself whether running a warez site is on par with throwing acid on a person. But be aware of the huge open question that is the pricing of IP, and there's a small industry built on trying to come up with a passable (but self-serving) number.

On behalf of the IP experts of the world, let me say: we have no idea how to price intangible assets. But despite our cluelessness, the number eventually made up matters to us humans. After Enron, there have been many volumes written on how to tighten accounting standards so companies can't do what Enron did, even on a smaller scale--but then IP gives companies an exception big enough to drive a truck through. By tricks like the one above, the US government loses what is no doubt tens or hundreds of millions in tax revenue. Market pricing of IP is sending Mr. Griffiths around the globe, and market pricing allows media producers to have so much pull in Congress that they can use the USA's finite political capital to initiate extraditions.



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on Wednesday, May 9th, Angelique said

Very interesting! Sadly, I think it's true that in general crimes against someone with money to prosecute are more likely to be prosecuted. The poor guy who had acid thrown on him doesn't have a chance.

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20 May 07. GPL v3, Microsoft, Patents, and bloat

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I know nobody reads this blog, but as a software and law sorta authority, I feel that I must comment on the GNU Public License (GPL) version 3, even though I'd rather not.

As with inventing a new programming language, inventing a new license creates incompatibilities where there were none before. Whereas before people could just write “This software is licensed under GNU GPL v 2” at the head of their code and move on with the work of writing code, now they have to waste time in what Linus Torvalds calls “office politics.” So what is the gain from throwing out the status quo?

The status quo
The system works via what are typically called “copyleft” licenses. The idea is that the work is firmly and distinctly copyright the author--but the author grants you the right to use the work for free, provided that if you make modifications or redistribute it, you also provide it for free and with available source code.

To give a real-world metaphor, the Book Thing hands out free books. Just show up on the weekend and take `em. But the inside is stamped NOT FOR RESALE. Hand them out, use them in your school (as many teachers to), but don't sell them for profit. If you find this stipulation to be somehow onerous, then just don't take the book.

And that's about how the copyleft system works. You can download the software and agree to keep it free for future users as well, or you can go buy a copy of Word.

Is this enforceable? As a matter of fact, yes. Haas explains that the current norm, GPL version 2, is enforceable pretty much worldwide. It depends as much on contract law as copyright, but that's perfectly OK, as it meets all the conditions to be enforceable under international contract law conventions.

It's hard for a not-omniscient person to say `never', but I can state with a great degree of certainty that the GPL v2 has never lost in court. It has only been challenged a handful of times, most of which are documented in Haas above. Although written by somebody in Boston with U.S. law in mind, it had a solid victory in Germany when a router company based its software on a GPL project but did not comply with the GPL (translated and annotated version of the ruling).

So we're back where we were: if GPL v 2 has had no problems, why does it need a new version?

Verbosity
The first thing that stands out about the new version is that it is much more verbose. The GPL v 2 was basically written by a programmer guy who had thought hard about how to distribute his work. The GPL v 3 was written by a large committee headed by that programmer (who is no longer really writing code) and a lawyer. Although lawyers do like to cover their bases and be as clear as possible, I'm not seeing evidence of why more verbiage will make an already enforceable and recognized contract more enforceable.

To give you an example, let's look at the patent language, which I'll discuss a bit more below. Version 2 specifies that patents and the GPL don't mix, so you have to pick either the free software or patent regime:

[...] if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

What does GPL v3 say? The same thing, but with many, many more words. Feel free to skim:

Each contributor grants you a non-exclusive, worldwide, royalty-free patent license under the contributor's essential patent claims in its contribution, to make, use, sell, offer for sale, import and otherwise run, modify and propagate the contribution.

For purposes of the following three paragraphs, a “patent license” means a patent license, a covenant not to bring suit for patent infringement, or any other express agreement or commitment, however denominated, not to enforce a patent.

If you convey a covered work, knowingly relying on a patent license, and the Corresponding Source of the work is not available for anyone to copy, free of charge and under the terms of this License, through a publicly available network server or other readily accessible means, then you must either (1) cause the Corresponding Source to be so available, or (2) disclaim the patent license for this particular work, or (3) arrange, in a manner consistent with the requirements of this License, to extend the patent license to downstream recipients. “Knowingly relying” means you have actual knowledge that, but for the patent license, your conveying the covered work in a country, or your recipient's use of the covered work in a country, would infringe one or more identifiable patents in that country that you have reason to believe are valid.

If, pursuant to or in connection with a single transaction or arrangement, you convey, or propagate by procuring conveyance of, a covered work, and grant a patent license providing freedom to use, propagate, modify or convey a specific copy of the covered work to any of the parties receiving the covered work, then the patent license you grant is automatically extended to all recipients of the covered work and works based on it.

I've read it several times, and can see nothing in the new version that was not clearly implied by the first. I can't think of any situation where a GPLed software author would win in court over a patent issue using GPL v3 but not v2--not that any patent issues have ever appeared to date.

Although some lawyers often imply this, more verbose does not necessarily mean more enforceable. Let's say somebody comes up with some creative scheme, like buying CDs from Red Hat and then bundling them for free with their hardware. Under GPL v 2, the activity is still covered, because it's clearly under the intent presented by the word “distribute”. Under GPL v 3, they're in the clear, because if the FSF wanted to restrict that behavior, they would have explicitly stated it with everything else--but they didn't, so they're obviously OK with it.

Judges tend to have a very limited tolerance of word games. If some activity looks like distribution on the face of it, then that's what it is, even if distribution isn't broken down into a thirteen-word categorization in the contract itself. There exists such a thing as a contract that is vague to the point of unenforceable (maybe “satisfaction guaranteed”), but GPL v2 has already won in court and is reasonably clear.

Ad hominem discussion
It's hard to not discuss ad hominem issues with regard to the Free Software Foundation. They're famously hard to work with. One guy I met, who had been very sympathetic to them, brought in a prominent FSF representative to meet with some heavyweight international law decisionmakers--the kind of access that most of us will never have, ever. Our representative showed up in computer programmer uniform (kinda stinky) and yelled a lot. I.e., he took an opportunity to seriously advance the interests of free software, and instead decided that displaying his personality and unwillingness to compromise was more important. The guy who invited the FSF rep came out thinking that these guys were the worst advocates for their cause you could possibly have. He felt a sad imbalance between the fact that they were advocating for openness and freedom, but desperately wanted to maintain their position at the helm of that freedom and openness (and the celebrity that implied).

I could give you a list of similar anecdotes from other people, but there's no need to drive in mean commentary. But do focus on that last comment from Lawyer From Major International Body: the FSF is of decreasing relevance, but its members eagerly want to stay relevant. And thus, we have the GPL v 3.

The FSF made itself a big deal by distributing really good software. Its founder wrote Emacs, a text editor beloved of geeks worldwide, and the FSF still maintains the GNU Compiler Collection, which is the main cornerstone of the entire free software system. I use it daily, and about 100% of my software, from the kernel to OpenOffice to the text editor I'm typing into, was compiled with it. In the 1980s, this was huge, because computer geeks were primarily working on the sort of level where the compiler is visible. But today, few people are that close to the machine. The FSF bitterly insists that a Linux system be referred to as a GNU/Linux system, due to the central position of the GNU compiler and shell and such (why not Linux/GNU?). The fear of becoming a piece of history is almost palpable.

Patents
Returning to patents, let me say that the changes to the section on patents from GPL v 2 to GPL v 3 are basically irrelevant. They fall into two parts.

The first is the text above about the basic question of patent infringement. Version two had this covered: if you refuse to grant a full patent license to any downstream users of the software, then you have to stop using and distributing the work. GPL v3 says the same thing.

The second part of their patent claims is more contentious. wc tells me that it is one sentence which is 13 lines, or 154 words long. The gist is: Remember that Novell-Microsoft deal? Don't do that.

It takes a 154-word sentence to explain that because it was such a specific, odd circumstance. Many members of the FSF saw the move as deeply offensive--I'll admit that I too saw it as shady. But it didn't restrict other Linux distributors in any way--it merely threatened to. But because FSF members took it as a declaration of war, they added a sentence-paragraph to the GPL v3. Without the clause, would such a situation ever arise again? Probably not. Novell took a beating for its deal, and one could argue that their business is worse off for it. The rest of the not-stupid computing world has learned from Novell's error.

The FSF has a more recent argument for the importance of GPL v3: Microsoft has stated that Linux, OpenOffice, and friends violate a few hundred patents held by MSFT. But, a lawyer for the FSF points out, their pact with Novell means that they are distributors of SUSE Linux, and are therefore bound by the terms of the GPL version two or later. When version three comes out, they will be bound to the patent provisions therein. See Groklaw for details on this little story. Notice that our lawyer refers to this scheme as “one more layer of probable defense” against MSFT patent infringement claims. I think he's calling it this because he realizes that MSFT's lawyers can shoot this argument down in time for their second coffee break. I can't explain why he's advancing such a weak legal argument without getting cynical.

But to a great extent, this is all one big misunderstanding. Let me digress a bit to explain why.

Microsoft hates patents

When the ruling in KSR v Teleflex came out, I though I'd be out of business as Mr. Software Patent Expert.

There are a number of problems with patents in the USA today, including:

  • Astronomical damages granted at the drop of a hat
  • The expansion of what is patentable to include stuff like price lists and equations
  • The expansion of US patent law to cover the globe
  • Too many stupidly obvious patents

Correspondingly, the nice people at the Supreme Court have heard four cases, whose questions match the above list:

  • ebay v MercExchange
  • LabCorp v Metabolite
  • Microsoft v AT&T
  • KSR v Teleflex

ebay, in a 9-0 ruling, curtailed the ability of patent holders to extract damages. Microsoft, in a 7-1 ruling, set tighter borders around patent scope. KSR, another 9-0 ruling from a week or so ago, redefined the means of determining what is patentable. And as for LabCorp, the court decided not to hear it at the last minute. It is obvious to all that software patents would be either curtailed or eliminated in that ruling, and in the ruling of any successor.

But there are people who think that subject matter is irrelevant to the problems of patent law. It's really about details of procedure and the definition of obviousness, they opine, and if we get those things straight, patents for software, business methods, dance moves, storylines, new words, or whatever else will work just fine.

Meanwhile, MSFT is taking billion-dollar losses left and right due to patent litigation. (Yes, billions.) There may have been litigators at MSFT who at one point thought the company could be on top of the patent game, `cause they are the biggest around. But now that they are the target for literally hundreds of stupid patent claims (`cause they are the biggest around), and have had to pay out billions of dollars in a number of settlements, I can't imagine that litigators are still as happy about MSFT's position in the patent game.

Microsoft does have its own patents. If you work at Microsoft and have a patentable idea, they'll give you $1,000 to file the patent I know because I have a pal or two who have taken the bonus. One gave his boss a copy of Math You Can't Use after they finished filing. I am certain that the patent portfolio has paid for itself via various business wranglings like the Novell deal. But having patents does not mean that they're going to get used for suing others. In fact, I know of no litigation to date where Microsoft was the plaintiff in a patent infringement suit. Which is not to say that they never have been, but that they have never been to the scale and extent that it made news, and that I am still not omniscient. Microsoft has never been a patent aggressor--it just keeps threatening to be one.

So what is the business benefit to threatening to sue over Linux right now? It's been about two weeks since their first rattling of the saber, and no new deals have come to light.

But the timing works perfectly with the KSR ruling. All those people who said that patents are safe and perfect now that obviousness has been patched, they suddenly fell silent. Microsoft has shown us that there can still be problems with software patents even after you fix obviousness, damages, and foreign trade issues. MSFT put software patents back on the front page of the Business section.

Which is brilliant. Reverse psychology at its finest. Knowing that they are the hated grownup, they said they love patents simply for the sake of making sure that everybody else would do exactly the opposite, and hate patents. Brilliant, I tell you. And they'll probably ink another deal or two and score a few million in spare cash in the process.

Returning to the FSF, I don't blame our open source lawyers for being worried. It's the lawyer's job to predict the worst case and prepare for it. But it's also the job of the sensationalist to point to the sky and say that it is falling.

Version 2 of the GPL has won every legal challenge it faced. It is immensely popular--partly because a programmer anywhere in the world, with no legal background and a modest command of English, can read it in its entirety and understand its intent. The same goes for any judge. That is, it was elegant and worked well thanks to that elegance. Version 3 follows the unfortunate path of many computer projects past: given a product so good that the users don't need anything further, the producers wonder how they can get out a new product, and so add more and more little details until the elegance is drowned. In short, GPL v 3 is bloatware, that provides little or no benefit over the elegant and effective version 2.



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on Monday, May 21st, A Fluffy-Tailed Friend said

I -still- read your blog.

As for GPL v 3, maybe the folks there simply need new hobbies...

on Wednesday, May 23rd, Mike said

You are the ONLY blog I read.

As to "(why not Linux/GNU?). The fear of becoming a piece of history is almost palpable."

It's usuially the first in modern society(that I have noticed) which sticks around. Remember "Sears, Roebuck, & Co."? How about a "Kentucky Fried Chicken"I still see one sometimes, the memorial site about 3300 South State St SLC(salt lake city), UT, but mostly I can only find this thing called "KFC". How about seen a film from (sorry if misspelled)"Metro, Goldwynn, and Mayor Studios"? How about "Independant" lable music? I have only found "Indy/ie" which I am told by the f.y.e. (Used to be media play) sales person is the same thing. Wait, there is one I remember where the second part was kept: Sugar Frosted Flakes.

They want to be remembered, and so insist in being put first. A little annoying, yes, but forgivable, I believe.

Sory if this turned into a rant, if it has, I apologize, it isn't ment that way.

on Wednesday, May 23rd, Rhett said

still reading your blog. still sad you never used my "bloatster" analogy for software patents - it's the best one in the world. it's creative commons so go ahead and use it sometime. ok, that was just a dumb licensing joke - totally unlicensed. steal it dude... seriously - best analogy out there. rock on.

on Wednesday, May 30th, Jen said

What's more interesting than the changes to the GPL is the software they are using to propose comments/changes on the draft: http://gplv3.fsf.org/comments/gplv3-draft-3.html. Probably won't be long before this is incorporated into blog commenting!

on Monday, June 11th, MIKE S. said

"No one else will make a Novell-like deal with MSFT" huh? Feeling stupid, stupid? (let me hear ya say XANDROS)

on Monday, June 11th, the author said

I'm in over my head legally with respect to the Xandros/MSFT deal, but it is dated 31 May, and the GPLv3 grandfathers in only agreements made before 28 March. The nifty drafting software mentioned by a commenter above indicates that the phrase "prior to March 28. 2007" got the most comments of any single phrase in the license.

So the clause directly applies to the Xandros/MSFT deal. Mike S, you're right that I was wrong in saying that nobody else would enter such an IP agreement, but the overall point that it's silly to add a byzantine one-deal-specific clause to the GPL seems to still hold. MSFT's lawyers read the clause specifically addressed to them, but saw a loophole or otherwise felt that it wasn't relevant. We're as well-off as if the clause weren't there at all.

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02 July 07. The US Trade Representative: Not working for you

[PDF version]

The US Trade Representative is a self-descriptive office of the Executive Branch. I've followed them as closely as I can tolerate, which is not too closely.

Within the broad mandate of its name--to represent the US in trade negotiations--it could potentially have a number of mandates. They could be free-marketeers, and simply strive to lift all barriers. They could try to maximize well-being for US citizens, under the presumption that the Indian and Chinese Trade Representatives are taking care of their own. But there are opinions from the USTR that contradict both of these options: they are no strangers to endorsing blocks on foreign goods, even though those goods may benefit U.S. consumers. After all, the USA still has a Harmonized Tariff Schedule with 99 chapters. How do consumers benefit from the 2.5-10% import tax on station wagons (chapter 87)? Why is coffee free for import but “coffee substitutes containing coffee” are taxed (chapter 9)?

They could be a pro-business organization, but that too fails, because there are many types of business the USTR leaves on the back burner of trade; you'll see one below. The only consistent description of what the USTR does is that it advocates for those companies and industry organizations that have contributed the most cash to the current presidential administration. That is the minimally cynical interpretation that is consistent with actual USTR behavior. I've tried my hardest to accept sunnier interpretations, but none fit. The only way to read the Harmonized Tariff Schedule is to ask who paid for each line to be added or removed.

As I've commented before, the USA has limited political capital. It's certainly a lot, and a lot more than Ghana has, but most trade negotiations are tit-for-tat operations, and you only get one tit at a time. Thus, when the USTR stands firm on a rule that maximizes profit for certain U.S. firms, it puts all other firms and individuals in a worse position. We've all got to pick our fights, but the USTR's seems to pick the fight for pharma--Harmonized Tariff Schedule chapter 30, plus appendix--pretty darn often.

The USTR and intellectual property
Because I spend most of my time looking at IP, I can offer it as a case study. The USTR is not interested in strong IP laws. Sure, they have documents that say things like “The Administration will continue to pursue the aggressive enforcement of intellectual property rights...” And they have repeatedly forced foreign countries to adopt U.S. patents so that they are unable to produce generic drugs that would lower prices in those markets, which seems to be a pro-intellectual property stance.

But on the other hand, it recently set up an agreement that some countries outside the USA must weaken their laws protecting medical test results(pdf), because such IP protection hampers the foreign adoption of US drugs. So there went any thoughts that the USTR just believes in IP: they advocate strong IP only when it benefits US interests.

The above document repeatedly states provisions that countries may limit the agreement when necessary to protect the well being of their citizens, but (I've briefly alluded to this before too) the USTR habitually puts pressure on any country that uses such compulsory licensing exemptions. The USTR is doing its part to make sure that nobody in Africa bypasses U.S. patents to produce AIDS medications, even though the situation is a public health emergency by any measure. There are likely tens or hundreds of thousands of people the world over who have died thanks in part to the USTR's selective position on strong intellectual property law.

Not doing evil: the hard part

Google, Inc., a provider of information services the world over, has had trouble in China. They profess their goal of making all the world's information available everywhere, but Chinese culture as far back as Confucius has pushed for greater restraint, pointing out that unfettered speech can destroy social order. This is one of the great questions of civilization, and none of us have an answer. Further, information covers a lot of ground with different ethical implications, including kiddie porn, Faulun Gong tracts, and direct critiques of government officials. So I'm not going to touch the question of what China's leaders should be doing. But the fact remains that they are currently among the world leaders in censoring Internet traffic.

But Google is sticking to its opinion that information wants to be free, and is working hard to make sure that its services are as fully available as possible in China. Is this because they want to maximize shareholder value, or because they truly feel that censorship is evil? I dunno. Probably a little of both. But they took an interesting approach to the issue: they petitioned the US Trade Representative, claiming that China's blocking of valuable information products at the border is exactly analogous to any other country's blocking of textiles at the border. After all, information is on par with textiles in dollar terms, and is the primary industry for large swatches of California. Further, the USTR has spent many lawyer-hours on convincing China's central government to convince local police to arrest Chinese street vendors who shill dubs of Star Wars, because doing so is in clear violation of the copyright on file at the film department of the Library of Congress which is where I'm writing from, by the way. So everything is in place for the USTR to get involved.

So, what is the USTR's opinion? From the article linked above: “`If censorship regimes create barriers to trade in violation of international trade rules, the USTR would get involved,' USTR spokeswoman Gretchen Hamel said. She added though that human rights issues, such as censorship, typically falls under the purview of the State Department.”

So they don't even bother considering it. Now, the USTR's lawyers are expected to argue three impossible legal interpretations before breakfast. For example, I've read too many articles where they claim that other countries are violating a treaty originating in 1986 if their domestic courts make rulings that diverge from a certain 1994 ruling by a U.S. domestic court. Yes, the TRIPS treaty and In re Alappat. They are such fans of disingenuous interpretation of law that I find their naïve statement that they can't see censorship as a trade barrier to be disingenuous.

The USTR's primary work is helping companies in situations where some country is not allowing the company to vend its goods, and this is exactly the situation Google faces. The USTR works hard on maximizing foreign markets for U.S. media. But here, the USTR rejects a media provider's complaint of being blocked from trade out of hand. Again, there's an easy cynical interpretation--Google has not contributed enough to the Bush Administration--but a non-cynical interpretation that is in any way consistent with other USTR behavior is not forthcoming. Why are Merck, the RIAA, the MPAA, and the Intellectual Property Owner's Association (a lobbying group for IP extremists) on the USTR's IP advisory committee, but Google is not invited? [IP is Industry Trade Advisory Committee number 15.]

Trade negotiations are going to happen, and India, China, and everybody else do indeed have their representative. So the US needs the office of the US Trade Representative. But it does not have to be an opaque organization that makes important policy decisions behind closed doors. I've tried, I've tried, and I can not find systematic evidence to refute the hypothesis that the USTR's purpose is to advocate for policies that make money for the small number of firms that are large contributors to Republican candidates.

But there are alternatives. They could set a list of open priorities and stick with them, except for circumstances that are understood and explained. Final agreements are half in the USTR's control and half the control of the other side, but the USTR could publish rationales for the agendas they bring to a meeting with trade representatives from other countries. More generally, they could behave like a representative of US citizens and provide the level of transparency we expect from a government bureaucracy with heavy influence on trillions of dollars in trade.




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