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Re: SCO Case Strengthens GNU/Linux

Roy Schestowitz wrote:
> Linux's Legal World After SCO

Another of Roy's excellent citations.

> ,----[ Quote ]
> | The SCO Group's legal attacks on Linux were a false alarm, but left the
> | Linux community with stronger defenses against future threats.
> `----
>
> http://www.linuxworld.com/news/2006/081406-linux-legal-world.html

In some ways it seems like only yesterday and in others it seems like a
lifetime ago, that a young programmer named Richard Stallman posted a
request to net.legal for some ideas on how he could copyright software
and publish it in a way that would give people the right to freely use
it and distribute it, but wouldn't let them create proprietary
derivative works.

Richard had written a program called Emacs, and Jim Gosling (Java Fame)
had written a proprietary commercial version which had some printer
drivers that Richard wanted.  Richard had put emacs into public domain,
and hundreds of contributors had added all kinds of interesting
features which were quite remarkable for a program running on PDP-11 or
VAX 11/750 hardware shared by up to 100 users using ANSII style
terminals.

When Gosling Emacs came out, featuring the drivers for this very
popular printer, the contributors were very upset with Richard for
"stealing their work".  Many of them were sending him threats, some
even threatened lawsuits or even physical violence.

There were about 100 readers of net.legal, many of them lawyers, others
just very familiar with copyright and patent law, and others just
willing to do some research in the area.  They spent about 3 months
discussing license terms, and revising what we now know as the GNU
public license.  I think at the time it was called the "General Public
License".

I was one of the participants in that discussion, not a very good one,
not even a regular contributor, but I do remember going to the
Rochester (NY) public library and CCI corporate library to check out a
bunch of books on updated copyright law, and once I understood the
concept of licenses, made a few suggestions of my own.

Alas, that entire discussion was not archived, because there was so
much "noise" and archive storage was so expensive, and hard drive space
so limited.  Most UNIX systems on VAX 11/780s would have an 80 megabyte
hard drive, and maybe a 300 megabyte external CDC hard drive the size
of a large washing machine.  When you were sharing that storage with
300 users, having a big fat archive of personal e-mail or usenet
postings was likely to get you attention from the system administrator
in a hurry.  As a result none of those discussions made it to the
Google archive.

I have some 40 megabyte 1/2 inch 6250 bpi tapes, but they are almost 20
years old.  I doubt they would even be readable.  I woudn't even know
where to find a tape drive to read them.  They are TAR format tapes
with 50 512 byte segments per "block".

I also have a QIC 150 cartridge that I created on a Sun Sparc machine
from 2 of the 40 meg tapes.  I might also have an exabyte tape (8mm)
which may be in compressed TAR format.

One important role for groklaw might also be to function as "patent
killers".  Imagine if all of those net.unix, net.os, net.dcom, and
other archives were actually available today.  Imagine if those
archives could be searched with Google.  Imagine if those archives
could be searched every time a patent application was made and
presented to the patent office as prior art.  At minumum, this would
protect all prior art and it's derivatives.  At best, this would
nullify thousands of patent applications that have been poorly
researched, or where prior art searches have been limited exclusively
to the patent office archives.

Remember it wasn't possible to patent software at all until about 1980,
and even then the patent was only granted because the patent office
could not distinguish which black box was a programmable computer and
which box was a custom hardware implementation, I believe the patent
was for RSA public key encryption.

It wasn't until about 1994 that patent law was revied to permit
software to be patented.  Prior to this, software programs were
considered to be algorythms, like recipies in a cookbook, or dance
steps, or instructions on how to operate equipment.

The laws were revised and congress declared that software programs were
"devices" and that if those "devices" had a specific practical use, or
this was an original use for this device, that the software program or
function could be patented.

The problem was that because software couldn't be patented up to that
time, the patent office had no archive of prior art.  There were plenty
of archives of prior art, but none that HAD to be referenced by the
archive.  In theory, someone like Pat Volkerding or any other Linux
distributor, could have applied for patents on every single shell
program for which there was a manual page, and stood a very good chance
of being able to get a patent on technology that had been around for
over 20 years.

As absurd as that sounds, the patent office archives are now filled
with patent applications for software "devices" that are more the
product of archeology than innovation.

Some companies like IBM and Kodak have tried to populate that archive
by including every possible reference to anything even remotely related
in their patent applications.  Even if the patent is rejected because
it's "not original", the application, and all of the prior art
referenced in the application, become part of the patent office
archive.

Microsoft has been pushing to have the laws changed so that "first to
file" get the patent regardless of who was "first to invent".  This
means that someone, even Microsoft, could try to patent the entirety of
UNIX or LInux as a series of patents, and try claim it as original
innovation.  Even with current laws, there have been a number of patent
"squatters" who think that just because they have been camping in a
national forest for a few years, that the now "own" the land.

Groklaw is an excellent project that makes net.legal seem primitive in
comparison.  There is a huge need for the kind of activity described
above.  We need to find as many of the old archives as possible, get
them into public repositories like Google, and make sure that these
archives are checked before the patent office grants a patent.

Rex


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