_______________________________________________________ | | | PROGRAMMING FREEDOM - online edition | | | | November 1992 -==- Number 6 | | | | The Electronic Newsletter of | | The League for Programming Freedom | | 1 Kendall Sq #143, POBox #9171, Cambridge MA 02139 | | Send email to: lpf@uunet.uu.net | | Voicemail phone number: 617-243-4091. | | Leave your message and we'll return your call. | | Editor: Spike R. MacPhee (spiker@prep.ai.mit.edu) | | Assistant Editor: Andy Oram (oram@hicomb.hi.com) | | Reproduction of Programming Freedom via all | | electronic media is encouraged. | | To reproduce a signed article individually, | | please contact the author for permission. | |_____________________________________________________| <><><><><> TABLE OF CONTENTS <><><><><> LPF News - New email address: lpf@uunet.uu.net; phone works again LPF publicity efforts at COMDEX - by Chris Hofstader LEGALLY SPEAKING: DEVELOPMENTS ON THE INTELLECTUAL PROPERTY FRONT - by Pamela Samuelson, Michel Denber, and Robert J. Glushko Norwegian LPF chapter activity - by Haakon W. Lie LPF Boutique: Materials Available from the League --==-- LPF NEWS - The LPF has a new email address: lpf@uunet.uu.net. If you mention the LPF in your signature, please update the address. The LPF phone is working again and also takes faxes now. Please send in your election ballot to ensure a legal quorum at the annual meeting, which is Sunday Dec. 20 at 8PM in the 7th floor lounge at 545 Tech Sq. (MIT NE43), Cambridge, Mass. <><><> --==-- The LPF at Fall COMDEX 1992 - by Chris Hofstader (cdh@gnu.ai.mit.edu) For the first time in the LPF's history we will be running a booth at the largest convention in our industry. In fact COMDEX is the largest convention of any kind in the world. There will be over 300,000 professionals and others from all aspects of the computer industry in attendance. It is being held in Las Vegas Nov. 16-20. COMDEX offers a unique opportunity for the LPF to have access to both computer corporate executives, their employees and perhaps most importantly the entire international technology press corps. Having our own booth at this convention will provide the LPF with a single focal point where all of these people can find us and find out more about our issues. This is the fourth year that the LPF has been at COMDEX with officials and volunteer members. This COMDEX also marks one of the rare occasions that Jack Larsen, Steve Sisak, Gordon Schantz and I will all be available to discuss LPF issues with both our members who attend the convention and the public at large. It will also offer us an opportunity to meet and plan for the future of the LPF. If any LPF members plan on attending COMDEX and would like to help the LPF there or would like to meet any or all of the LPF leaders who will be in attendance there are a number of things that you can do: 1. Send me some mail or call the LPF telephone before the convention and we can add you to the LPF guest list. Purchasing a booth at COMDEX allows us to give out a fair number of guest passes at no charge to the LPF but a 75 dollar savings to the members who take advantage of this offer. 2. Call us at COMDEX. There are a number of things that a volunteer can do to help us there and of course we would like to meet and talk to any members who are interested. Jack Larsen, Steve Sisak and I will all be registered at Circus Circus throughout the convention. 3. Visit the LPF booth. Our booth is located in the Riviera convention center located adjacent to the Riviera Hotel on Las Vegas Blvd. We will have plenty of LPF materials there as well as being there ourselves throughout the week. 4. Send other people to the LPF booth. We would love to talk to your friends and coworkers about he importance of our issues and about the LPF. Whether you choose to volunteer at COMDEX or just stop by to talk we would enjoy seeing you there. If you cannot attend but have friends or coworkers attending please tell them to drop by and find out what we're all about. <><><> --==-- LEGALLY SPEAKING: DEVELOPMENTS ON THE INTELLECTUAL PROPERTY FRONT by Pamela Samuelson, Michel Denber, and Robert J. Glushko [This column was first published in the June 1992 issue of Communications of the ACM. It may be reproduced only for noncommercial purposes. Due to length, we have edited the article from nine to six pages.] The rift between what computing professionals think the law of intellectual property rights in computer programs ought to be and what intellectual property professionals (mainly lawyers) think it ought to be is growing wider every day. At the moment, it appears that the intellectual property professionals are outmanuevering the computing professionals by working toward establishing their vision of the proper rules on software intellectual property rights as "the law" before the computing professionals even know that the rules that will govern their conduct are being decided. While there are unquestionably pros and cons to the software patent and other intellectual property controversies, the unfortunate fact of current U.S. policy on intellectual property rights for such an important product as computer programs is that the policymaking seems largely to be occurring either behind closed doors or in courtrooms across the country in cases in which the court papers are filed under seal. This effectively precludes those whose work will be substantially affected by the resolution of these controversies from having any meaningful input into the process of shaping the law in a manner that would make sense to them. Exclusion of computing professionals from the policymaking process also means that the opportunity to persuade them of the merits of proposals eventually adopted has been lost. This, in turn, may have serious consequences for the enforceability of the proposals if they become the law. This column will report on this rift by bringing CACM readers up to date on some national and international developments in the intellectual property rights arena and by reporting the results of a survey on intellectual property rights conducted in August 1991 at the SIGGRAPH conference in Las Vegas. The SIGGRAPH survey results are much the same as the CHI '89 survey results reported in the May 1990 "Legally Speaking" column. Both surveys show strong support for copyright protection for source and object code, but little support for copyright or patent protection for most aspects of user interfaces and internal structural features of computer programs. If anything, the SIGGRAPH survey results show even stronger opposition to copyright protection for "look and feel" than did the CHI '89 survey, as well as stronger opposition to patent protection for algorithms. Further evidence of significant opposition to patent protection for computer program-related inventions can also be found in a large number of letters sent by computing professionals in response to last summer's call for public comment by a U.S. Advisory Commission on Patent Reform that was ostensibly created to address questions about patent protection for software innovations, among other issues. The Commission's recently released draft report dismisses concerns raised by software patent opponents, and urges, if anything, broadening the role of patents for software innovations. That the Commission should be preparing to make these recommendations is not surprising to those who knew the composition of the subcommittee in charge of the computer program-related invention issues. This aspect of the Commission's work seems to be a thinly disguised effort to prevent a more democratic public debate on software patent issue in which the views of computing professionals could be considered. Other events happening outside the realm of public debate include the recent release of a draft agreement on intellectual property rights being considered for inclusion as an addendum to the General Agreement on Tariffs and Trade (GATT). Although the draft doesn't directly say so, one of its provisions can be read as requiring member nations to provide patent protection for software innovations. This aspect of the GATT-related draft agreement would seem to implement another recommendation of the U.S. Advisory Commission on Patent Reform draft report which urges the U.S. to strongly encourage other countries to broaden patent protection for program-related inventions. THE SIGGRAPH SURVEY ...After the panelists spoke and responded to questions, the audience was asked to respond to a survey nearly identical to the survey on intellectual property rights conducted at CHI '89. There were 345 respondents to the SIGGRAPH intellectual property rights survey. As with the CHI '89 survey (which had 667 respondents), the SIGGRAPH survey was filled out by people who mainly worked for firms that develop software for commercial purposes (only one in five of the respondents to these surveys worked for universities)... AN OVERVIEW OF THE FINDINGS ON PROTECTION OF VARIOUS ASPECTS OF SOFTWARE There were three aspects of programs that enjoyed significant support for intellectual property protection among the SIGGRAPH survey respondents. Like the CHI '89 respondents before them, SIGGRAPHians overwhelmingly supported copyright protection for the source code of computer programs. Although a strong majority also supported copyright protection for object code (as had the CHI survey respondents), support for copyright protection for object code was nonetheless lower among both SIGGRAPH and CHI respondents than was the support for copyright for source code. The other aspect of software enjoying strong support for copyright protection from SIGGRAPH respondents was computer generated images (a subject about which no inquiry was made on the CHI survey)... ... nearly four out of five of the SIGGRAPH respondents were against patent or copyright protection for algorithms, whereas the CHI respondents were almost evenly split on the issue... STRONGER OPPOSITION TO "LOOK AND FEEL" Opposition to copyright protection for the "look and feel" of computer programs was also stronger among the SIGGRAPH respondents than among the CHI '89 survey respondents. More than three-quarters of the CHI respondents had expressed opposition to protection for the look and feel of computer programs. Ninety-four percent of SIGGRAPH respondents, however, were opposed to look and feel protection... SIMILAR RESULTS CONCERNING OTHER USER INTERFACE FEATURES Apart from the stronger opposition to look and feel protection, the SIGGRAPH survey yielded quite similar results to the CHI '89 survey concerning other aspects of user interfaces. Ninety-two percent of SIGGRAPH respondents opposed protection of user interface commands, as had 88 percent of the CHI respondents. Ninety-one percent of SIGGRAPH respondents opposed patent or copyright protection for user interface functionality, as had eighty-three percent of CHI respondents. There was somewhat less support among the SIGGRAPH than CHI respondents for protection of user interface screen layouts (79% opposition among SIGGRAPH and 69% among CHI respondents) and for user interface screen sequences (90% opposition among SIGGRAPH and 79% among SIGCHI respondents for this). Icons, however, were thought deserving of protection by almost equal percentages of SIGGRAPH (44%) and SIGCHI (43%) respondents... DEVELOPMENTS ON THE PATENT FRONT About two years ago, after some National Research Council workshops aired conflicting views on software intellectual property issues, a Congressional hearing was held on software intellectual property issues. At this hearing, software developers Mitch Kapor and Dan Bricklin, among others, expressed a number of concerns about patent protection for software innovations. Some of the concerns pertained to problems with how the U.S. Patent and Trademark Office (PTO) was implementing its policy on computer program-related inventions (e.g., problems arising from the PTO's ignorance of the prior art and too low a standard as to what software innovations were inventive enough to be patented). Some concerns were more fundamental in nature (e.g., whether patent protection for software innovations might significantly raise the barriers to entry to the software industry, especially worrisome because small software firms have been at the forefront of innovation in this industry). At about the same time, the United States began to consider proposals to change its patent law to make it more like the patent laws of other industrialized nations. To address questions that had arisen concerning patent protection for computer program-related inventions (including those raised at the Congressional hearing) and to consider the patent harmonization proposals and some other issues, the U.S. Department of Commerce established an Advisory Commission on Patent Law Reform. Although one important set of issues to be addressed by the Commission concerned software patents, no effort was made to find a prominent computing professional who had no stated position on the issues to serve on the Commission. The person appointed to serve as the chairman of the Commission's working group on the computer program-related inventions was Howard Figueroa, an IBM executive who had publicly spoken in favor of patent protection for computer program innovations before his appointment to the Commission. (Interestingly, twenty years ago IBM was one of a number of computer firms who submitted an amicus brief to the U.S. Supreme Court in the Gottschalk v. Benson case arguing against patent protection for algorithms and other program-related inventions because of their mathematical character. The nature of program algorithms hasn't changed at all in the past two decades, but IBM's position on the patent issues has completely reversed itself.) The "public interest" representative on the Commission's working group on the computer program issues was William Keefauver, the lawyer who argued the Benson case before U.S. Supreme Court on behalf of AT&T (the assignee of Benson's patent rights). Keefauver has made no secret of the fact that he regards the Supreme Court's ruling that Benson's algorithm for converting binary coded decimals to pure binary form was unpatentable was wrongly decided. With Figueroa and Keefauver on the working group on the computer program-related issues, along with three other lawyers specializing in patent law (and an IBM attorney as an alternate member), it was widely expected that the group would conclude that patents were appropriate for computer program-related inventions. Indeed, any other conclusion would have been extremely surprising. (Samuelson has yet to meet a patent lawyer who has doubts about the advisability of patent protection for software innovations.) Last spring the Commission published a set of questions for comment from the public. Most of the questions dealt with patent harmonization and other issues, but the first group of questions focused on the computer program-related issues. Even the manner in which the Commission stated its questions on the computer program issues suggested something other than an open mind on the issues. One of the questions, for example, asked whether there was any reason why patent protection should be "removed" for computer program-related inventions. This way of stating the question suggests that the law already clearly provided patent protection for computer program innovations when, in fact, the case law is in considerable disarray on this subject. The Commission has acknowledged receiving 545 letters in response to this set of questions. Nearly eighty percent of the letters addressed the computer program-related questions; sixty percent addressed only the computer program-related issues. The Commission has not provided further information about the letters, such as the numbers of respondents who opposed or supported patent protection for computer program innovations. Electronic versions of some of these letters were posted on electronic bulletin boards. From these, it is clear that quite a number of the letters were critical of software patents and quite a number came from computing professionals. The draft report of the Commission's working group on the computer program-related issues was released in January of 1992. Unsurprisingly, it concludes that patent protection for computer program-related inventions is well- established in the law and should be continued. By endorsing the view expressed some years ago by patent scholar Donald Chisum that algorithms and other computer program related inventions are patentable because they are processes and have a technological character, the draft report seems to to call (as Chisum also did) for the overruling of the 1972 Gottschalk v. Benson decision in which the U.S. Supreme Court decision ruled that computer program algorithms were unpatentable on account of their mathematical character. The draft report states that it considered all the letters submitted in the response to the request for public comments. But the report mainly mentions potential objections to the patenting of software innovations as a prelude to dismissing them. (This part of the report follows the form: "A" is not a problem because of X; "B" is not a problem because of Y; and so on.) The draft report does, however, recommend a number of changes in PTO procedures for dealing with program-related inventions. For example, it states that the Office should have better access to the prior art for software innovations and better ways of classifying software so that people can search more effectively for what has been patented before. The draft report also asserts that Europe and Japan now strongly support patent protection for the patenting of computer program-related inventions, and that the major patent offices around the world are operating in substantial harmony concerning patent protection for software innovations. It further urges the U.S. to press those nations that don't provide patent protection for software innovations to modify their policies to make program-related inventions patentable, saying that the U.S. competitive edge in software depends on the availability of patent protection. (It would take an entire column to explain why the report's assertions about other nations' patent standards aren't completely accurate, but it is worth noting that the competitive edge that the U.S. software industry currently enjoys was achieved in a legal environment in which patent protection was not available for most computer program-related inventions.) GATT-RELATED DEVELOPMENTS For the last several years, negotiations have been underway to reach agreement on international norms on intellectual property rights within the framework of the GATT. In mid-December 1991, a draft agreement on Trade Related Intellectual Property Rights (TRIPS) aimed at achieving this goal was distributed. It is now under consideration by member nations. Negotiations about it are expected to continue for some time. It is far from clear that this draft will be adopted, mainly because third world and industrialized nations have not yet resolved some longstanding disagreements on a number of its provisions (such as those requiring patent or patent-like protection for new species of plants). Only a few of the provisions of the draft TRIPS agreement deal with computer software issues. The main provision of the TRIPS agreement concerning intellectual property rights in computer programs is that which would require member nations to protect computer programs as "literary works" under copyright law. The patent section of the draft TRIPS agreement does not directly mention computer software, but the provision does say that patents are to be available without regard to the "field of technology" to which they pertain. Since it is difficult to dispute that computer programming pertains to a "field of technology," this provision can be interpreted as requiring member nations to protect software innovations by patent law (notwithstanding the statutory provisions that many nations have excluding many program-related inventions from patents and judicial interpretations in many nations that have tended to limit the extent of patent protection for software innovations). Those who support this expansive interpretation of the draft TRIPS agreement, like those who wrote the Patent Advisory Commission draft report, tend to assert that there is already a significant consensus, at least among Industrialized nations, in favor of patent protection for software innovations (when, in fact, there is not). They also tend to ignore significant differences in patentability standards employed by those nations that do provide some degree of patent protection for software innovations. At an international conference on software intellectual property rights sponsored by Japan's Software Information Technology Center held in Tokyo in December, the head of the EC Directorate which issued the EC Directive on Copyright Protection for Computer Programs, after listening to discussion of British, German, U.S. and Japanese patent caselaw on patent protection for computer program-related inventions, stated that the discussion had convinced him that it was premature to say that there was sufficient consensus on this set of issues to make it part of the GATT framework. CONCLUSION The SIGGRAPH intellectual property rights survey, like the CHI '89 survey before it, demonstrates that there is strong support for copyright protection for source and object code, but strong opposition to extending copyright protection to such things as "look and feel" within these segments of the technical community. Those surveyed expected negative consequences for their own work and for the industry and community of which they were a part if the look and feel lawsuits established strong copyright protection for user interfaces. The survey also suggests that there is significant opposition within these communities concerning patent protection for software innovations. Neither the SIGGRAPH or the CHI '89 surveys purport to be anything more than what they are: interesting sets of data about what people in these communities think about the legal issues that affect their field... Intellectual property rights are, of course, not a popularity contest. What people in a particular field think the law should be on a particular issue, even if by substantial margins, doesn't necessarily mean that the courts or the legislature will or should agree with that group's assessment. But what people think about the norms that will govern their work and the industry as a whole ought to matter, if for no other reason than that if there is a substantial gap between what people in the field think the rule should be and what the rule is, they may not respect the rule, or may devise strained interpretations of it that may lead to more litigation. Resentment at being excluded from the process of shaping the rule can also undermine the effectiveness of a rule. ...Computer programs are unquestionably an important item of commerce, not only in the United States, but in many other nations. Given the international nature of commerce of this product and its associated services, it is understandable that the U.S. and other exporters of software products would press other nations for adoption of relatively uniform rules for protecting intellectual property rights in software. But it is a bad way for the U.S. (or any other country) to make public policy by pushing for adoption of an international treaty requiring member nations to give patent protection to software innovations and then use that requirement as a basis for asserting that the U.S. (or other country) has to patent software innovations in order to comply with its treaty obligations. Computing professionals rely on the strength of the software industry, both for their employment and for the tools with which they conduct their work. They have a strong and abiding interest in the success of this industry, and in the existence of intellectual property rights that provide needed incentives for investment in the industry. In addition, they have a strong sense of professional responsibility and they care very much about the norms that govern their work. By virtue of their experience in the field, computing professionals also have some insights about what kind and what extent of intellectual property protection for software is appropriate that those who are making policy in this area would do well to heed. Pamela Samuelson is a Professor of Law at the University of Pittsburgh School of Law. Michel Denber is a researcher at Xerox Corporation's research facility in Rochester, New York. Robert J. Glushko is the President of Hypertext Engineering, Pittsburgh, Pennsylvania. --==-- <><><>LPF email lists - who and what they are for<><><> These lists are for LPF members only, although you may, of course, redistribute postings to your friends in the hopes of getting them to actively support the LPF by joining. The moderated mailing list: league-activists@prep.ai.mit.edu and its two sub-lists: league-activists-boston@prep.ai.mit.edu and league-activists-remote@prep.ai.mit.edu should be used only for members' requests for assistance in league projects, local or nationally, or for announcements from LPF. These lists are filtered by a moderator to: - insure this use; - minimize the number of messages; - remove items meant for the list's -request address; - forward items that should have been sent to another list. There may be a delay of up to 3 days for your message to be sent on L-act, so plan ahead for volunteer requests. League-tactics@prep.ai.mit.edu is for discussion of LPF directions and is not moderated. If you want to subscribe, change your eddress (email address), or be removed from either list, please use: league-activists-request@prep.ai.mit.edu or league-tactics-request@prep.ai.mit.edu General questions about the LPF, and administrative questions about your membership or your email copy of the newsletter should still go to: lpf@uunet.uu.net --==-- LPF Norwegian chapter activity - by Haakon W. Lie (Haakon.Lie@nta.no) On June 22, the computer science elite of Norway celebrated the 25th anniversary of Simula, a pioneering object-oriented language. Among the invited speakers were Alan Kay (formerly of Xerox Parc, now an Apple fellow) and Larry Tesler (formerly of Xerox Parc, now VP at Apple). Among the more innocent VIPs were Bjarne Stroustrup and C.A.R. Hoare. The Norwegian chapter of the League for Programming Freedom used this opportunity to express our position on user interface copyright and software patents. The 300 participants received handouts describing the current threats to programming freedom. both Alan Kay and Larry Tesler received a copy of the handout, and Tesler acknowledged our existence in his presentation (before he showed the demo tape of Apple's forthcoming Newton he said he hoped the LPF representatives would not copy the user interface. I presume he intended to make a joke). The leading computer newspaper in Norway (Computerworld) covered the event and presented the the views of LPF in two following articles. Pictures of LPF members with banners ("Object-oriented programmers, beware!", "Defend Programming Freedom") and handouts were featured and the total LPF coverage exceeded that of the jubilee itself. The Norwegian chapter received several new members as result of the action. To my knowledge, we didn't make any immediate enemies -- we were careful to sympathize with the theme of the conference. The handout started like this: Object-oriented programmers -- beware! The League for Programming Freedom salutes the creators of Simula and Object-Oriented Programming. Object-oriented programming has given programmers powerful techniques to express themselves for the benefit of the users. Today, the freedom of expression for programmers is threatened by software patents and interface copyrights. LPF is a very American organization using a very American symbol [the Statue of Liberty] and this may alienate some people. therefore, some of the text on the handouts and banners were in Norwegian, and we tried to modify the arguments to suit the law of the land. --==-- <><><> LPF Boutique: Materials Available from the League <><><> Please send your order to the League address on the first page. We don't take credit cards yet, but do take US currency in cash, checks, money orders, or any of the brands of Travelers Checks. Buttons We have reprinted the famous ``fanged apple'' buttons. These buttons show the symbol of Apple computer with an alien snake's body and face. You can buy buttons by mail from the League, for $2 each, in quantities of at least three. We give out buttons at events, but ask for a donation. Stickers We also have stickers showing Liberty Empowering the Programmer, with the League's name and address. You can order stickers by mail from the League at $5 for 10 stickers; for larger orders, phone us to discuss a price. We hand them out free when it is convenient, such as at our events, but since mailing packages to individuals costs money, we want to make it an opportunity to raise funds. Post stickers at eye level and separated from other posted articles, to make them easy to see. The stickers are not made to survive rain. Liberty Postcards We also have postcards showing Liberty Empowering the Programmer, with the League's name and address. Same terms as the stickers. Large Liberty Posters We have a few posters with the same image that is on the stickers, approximately 2.5 ft by 1.5 ft. They are $4 each and $4 total shipping and handling in the US for the first one to five posters, and $2 shipping/handling for each additional five. Coffee Mugs Our coffee mugs have the Fanged Apple design in full color on one side and ``League for Programming Freedom'' on the other. They hold twelve ounces and are microwave safe. You can order a mug for $15, nonmembers $17, plus $3.00 shipping and handling. They are now in stock. Note the price increase. T-Shirts Michael Ernst has produced t-shirts with Liberty and ``League for Programming Freedom'' on the front and ``Innovate, Don't Litigate'' on the back. (The back slogan will change from time to time.) You can order shirts by mail from the League for $10, nonmembers $12, plus $2 for shipping and handling. Available colors are yellow, light blue and ecru; if you specify a color, we will assume you would rather have another color than no shirt. If you want a chosen color or nothing, say so explicitly. Please specify the shirt size! (M, L or XL.) We are sold out of XL shirts with this back-slogan. We have printed the next version of the LPF t-shirt. The new back-slogan is "You'll pay for this", with an XORed cursor over the word "this", and "League for Programming Freedom" underneath. The front is the same as the older shirt, and the colors are yellow, light blue, and off-white in M, L, and XL sizes. Position Papers and Memberships We will send anyone a copy of the League position papers. If you want other copies to hand out at an event, we'll send you as many as you need. Please discuss your plans with us. One-year memberships are $42 for professionals, $10.50 for students, and $21 for others. The dues are $100 for an institution with up to three employees, $250 for an institution with four to nine employees, and $500 for an institution with ten or more employees. For $5000, an institution can be a sponsor rather than a member. League Papers Online You can retrieve LPF written materials in TeXinfo format by anonymous ftp from prep.ai.mit.edu in the directory /pub/lpf. These include the position papers, all back issues of our newsletter Programming Freedom membership form, handouts, friends of the court briefs, and articles about the LPF's issues of concern. In addition to the above, Joe Wells has PostScript, DVI, plain text, and Info format versions of the papers "Against User Interface Copyright" (look-and-feel) and "Against Software Patents" (patents) available for FTP from the location: cs.bu.edu:pub/jbw/lpf/ League Video Cassettes We have a four-hour video tape of two of Richard Stallman's speeches for the LPF. If you'd like to give LPF speeches, we can send you a copy of this tape to give you an example to learn from. If you'd like copies for another purpose, we can send them for $20 each (includes $4 shipping and handling.) They are now available in VHS/NTSC format only. <><><> FIRST CLASS MAIL FIRST CLASS MAIL FIRST CLASS MAIL FIRST CLASS MAIL League for Programming Freedom 1 Kendall Square #143 P.O.Box 9171 Cambridge, Massachusetts 02139 FIRST CLASS MAIL TO: FIRST CLASS MAIL FIRST CLASS MAIL