Software Company Policies and Legal Issues

[Rhazdel]

It's not that I believe that the judges that uphold the law are completely correct, but thank you for assuming that I'm some kind of country rube that doesn't understand the legal system.

Listen, please: I agree with the judge because I believe that, as Ccoa said, programming (even the coding) is about 50% art and 50% math. Because it is an artistic impression, I believe in my opinion (and mine alone), that this should fall under copyright protection, not patents, as copyrights extend to intellectual property. That is my opinion and it is not based off of legal precedence.

Back to efficiency, out of an infinite number of variations of design of a given routine in a program, only one or maybe a handful will complete the task in the lowest number of clock cycles. A given program made of thousands or even hundreds of thousands of routines may perform similarly overall to another program that uses a different set of routines, but there is still a theoretical ideal compilation of all the most efficient routines. The feature set is a question of design and purpose, not efficiency. I concede that in 'real world applications' there's no substantive difference. However I still say if the information was open and accessible, at least after a reasonable period of time, the most efficient ways to do things would get discovered and fall into the public domain, and software would benefit in a substantive way by being just a little faster, a little less buggy, a little more accessible.

The thing with programming large programs is that there isn't a "best way" of doing it. There are thousands of pieces of data you are manipulating, and thousands of possibilities on how to control it. With simple programs, it is much easier to just program it one way, but when the program becomes more complex, so too, does the programming process. You often times can reach the same end with little, if any, slow-down.

You'd look at the patents for the remaining ones, decide if their functionality was important, and if it was you would come up with a different way of doing it and patent it. That way your engineers wouldn't have to start from nothing and waste tons of time scratching their heads about how to throw together a bunch of transistors that will change 0100 to 1000 at address 0x0C6 when given the proper instruction for a bit shift.

First off, what good would it do you to look at how programs were written 10 years ago? In computer age, that is like looking at how special effects were done in movies from the 1950's.

Secondly, if your engineers are scratching their heads over how to program software, you probably should get some new engineers.:-/

There's no "external fluffy stuff" - even the composition of the circuit board that sits around the die and the heat spreader you commonly find on today's processors are covered by patents, as are the specific technologies used in the resistors capacitors, diodes, transistors and miscellaneous other components located on the chip but outside the die. Literally every single little tiny bit in your computer is or was covered by a patent, even the little silicon sheet that sits between the keys on your keyboard and the contact surface below that protects it from damage from all the crap that gets dropped in it. In fact the material that the sheet is made of is individually patented from the design of the sheet from the manufacturing process that makes the sheet. I could go on but I'm sure you get the point : )

Patents cover tangible goods. Copyrights cover intellectual (intangible) goods. Hardware can be patented, because any company can replicate it with the correct material. Software can be replicated by using Ctr+C, Ctr+V.

Most EULAs expressly prohibit resale. It's called an "End User" license agreement for a reason. By doing so you violated the terms of your EULA and committed an illegal act. As a computer retailer I was not allowed to do that; if I sold a computer, it had to come with a brand new set of licenses. Now in practical terms nobody will ever come after you for it because the cost of litigation would vastly exceed recovery in damages, even if they got attourney and court fees out of you. But if I were to do that as a reseller I would get sued. In my opinion, that is pretty messed up. Would you have done it anyway if you knew it was illegal?

It is because the company has given special permission to YOU to rent the software. They have a record in their file that shows that YOU have agreed to not tamper with the material. If you give it over to someone else, then they have not signed the EULA, and therefore are exempt from the tampering law. So, they make transferring illegal, so the company still has legal recourse against someone that never signed the EULA.

You may say that we got by just fine without computer access 30 years ago. We also got by 'just fine' without glass 500 years ago. 500 years ago, glassblowers guilds had proprietary knowledge of how to make and manipulate glass. They could set the price of any glass product and they set it way outside the range that the general public could afford. They clung to that proprietary technology for thousands of years. When, at the risk of death, torture or imprisonment, that knowledge finally got out it changed the entire world and had a big impact on the blossoming of the renaissance that brought the western world out of the dark age. Point being that the standard of decent living is increased every time new technology is developed, and it's not valid to claim that people did just fine without in the past therefore they can get by just fine in the present. Before you go saying that the general public can afford the software that makes a substantive difference in their life, remember that concept of the general public includes the upper half of the population of first world countries exclusively, which is maybe 20% of the world's population.

Are you actually comparing modern day accessibility to common, tangible items like glass, which have revolutionized modern society, to you having access to the coding for Doom? - (a little over 10 years old, which would have expired under patent and you would, just now, have access to).

If you look at the guys who are working in genetic engineering for instance, DNA is essentially a base-4 system and programming language, making it implicitly more complex than binary. Strangely they seek patents, not copyrights, on their designs. Nanotechnology works on the atomic level, assembling single atoms into molecular-scale machines, and they have to engineer those machines to complete certain tasks through a series of logical algorithms based on the widely varied properties of the base materials. Even though they operate almost entirely in theory at this stage, they patent their ideas.

There is only one, distinct way to alter DNA, and not multiple routes like coding (Trust me, you don't want people getting "creative" with your genes. Not pretty). That is what sets them aside. In 50 years, there still will be only 1 way to control genetics, so they put them under patent, so that in 10-15 years, this sole way of doing it will be available to everyone. There is no artistic value to their work, and so it does not fall under "intellectual property".

 

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Nphyx, I will ask you this, If a company would sue a person for violating the EULA by simply reselling the product, do you think the judge will favor the company?

A judge's job is to judge in favor of the person with the proper legal standpoint. If the defense can somehow make an argument that the terms of the EULA are illegal, unconstitutional, or otherwise unenforceable that's one thing. Judges are not supposed to make ethical decisions based on the outcome, that is against how our legal system works. I know many people don't get that, but it's one of the first things you learn in law school. When a Judge does make an ethical rather than legal decision outside the criminal court (where the prosecution is not allowed to appeal) the case will get appealed and overturned. His job is simply to follow the letter of the law.

If you don't like the way the law works, you talk to the legislature, not the court, and demand that it be changed. It's their job to make laws that are ethical and best for everybody in the first place. Sometimes they screw up, people protest, and they get rid of the laws, but the only time a Judge can throw a law out is if it's superceded by another law or unconstitutional. Many criminal laws fail simply because the executive branch (including the president and his cabinets, bureaus, agencies, military, and the state version which is the governor and police force) refuses to enforce them. There are standing laws in places that say all kinds of silly things, but they've never been challenged because cops just don't enforce them. But as of right now EULAs are perfectly enforceable and people can and have been sued for reselling non-transferable licenses, which is why retailers usually don't do it, and when they do they do it at their own risk. The threshold on whether you get sued is simply whether the trial is worth the time and money it takes to put it on for the license owner, either in terms of recovered damages or in terms of setting an example.

Oh also, in the U.S. you don't get imprisoned for contract violation, you just have to pay money equal to the loss of the prosecuting party if you are found to be in violation, plus in some cases additional amounts, and often follow court orders such as cease&desist (which can be enforced by imprisonment if you violate them). The money you pay is called "damages" and that's what they're talking about when they say that usually. Other countries do have debtor's prisons where you are put to 'pay off your debt' if you can't afford it, but we decided that was unjust a long time ago in my country. So don't worry too much about that one if you're also in the U.S.

Actually come to think of it all of what I just said only applies in the U.S., other countries that are under common law and have a constitutional representative government work similarly though. So I'm sorry if you're from somewhere else, I have no idea how it would work for you.

Patents cover tangible goods. Copyrights cover intellectual (intangible) goods. Hardware can be patented, because any company can replicate it with the correct material. Software can be replicated by using Ctr+C, Ctr+V.

Incorrect. Patents and Copyrights both, by definition, cover intellectual (intangible) property. They are both ways of legally protecting ideas. Laws against theft, property damage, embezzlement, etc. cover the tangible results of those intangible ideas. Check those two links I posted, please.

First off, what good would it do you to look at how programs were written 10 years ago? In computer age, that is like looking at how special effects were done in movies from the 1950's.

Secondly, if your engineers are scratching their heads over how to program software, you probably should get some new engineers.

I wasn't talking about software design, I was talking about the design of the processor. I think the fact that at a quick glance you can't tell the difference is pretty telling on the similarity between the two fields :D And all programs still operate that way. When you compile a program you compile it into binary code, which is just a long series of instructions on how to manipulate data in memory and it looks a whole lot like that (although that example was a little inaccurate since it's unlikely you'd be manipulating only 4 bits of data at a time these days). I was talking about how the engineers arrange the transistors on the die to complete the operations those instructions are asking for, and frankly it's quite mystifying to me. I mean I get how transistors work and if I sat down and thought about it logically long enough I could probably build a basic pocket calculator or something, but the operation of millions of microscopic transistors in a processor... that's just wow.

To the other few things you mentioned, the point I very clearly stated was not that those things were very similar to software engineering, but rather no more dissimilar to software engineering than to each other or other forms of engineering. I'm not interested in debating the peculiarities of each because it's off-topic (though I would love to talk about genetics more sometime).

 

[kimpoy2006]

But Nphyx, the law is sometimes very restrictive and it is through cases like these do laws get revised for the better. Some cases, aren't just based entirely on the law, sometimes it requires that your conscience be good and enforce a proper and well more ethical law. I've read some book that is kinda similar to this topic and most of the judges and law deans also based their decision on ethics and morals.

 

[___]

Law Professors can talk all they like about ethics in the legal system, that's their job. Sometimes Judges do make ethical rather than legal decisions, but that's them failing to do their job, like it or not. Judges don't get to make up laws, that's the job of the legislative branch, and it's our job as the population to pay attention to what our representatives are doing for us and put pressure on them to make the right decisions when appropriate.

Ultimately when a Judge does feel pressured by his conscience to make a decision that is not in line with the law I applaud and cringe at the same time because it tells me two things: 1. that we are somehow allowing laws to get passed that result in the kinds of injustices that move a judge's cold, stony heart, and 2. that the foundation of our government is slowly but surely eroding, to the point that the judicial branch no longer trusts the legislative branch to know what the hell they're doing.

Anyways I'm sorry but this is pretty off-topic : ) Fact is EULAs can and do get enforced in court and as far as I know non-transferability has not been successfully challenged. If it has please drop me a link because it's a valuable piece of information and I'd like to have it handy.

 

[Tdata]

Nphyx:

Are you sure Tuition was the only reason you didn't finish law school? Do you forget that the country has a system of checks and balances? Say the legislative branch passes a law that states that no one can carry a gun within 50 feet of a building, and the executive branch doesn't veto it. A cop arrests a man for violating this law. The judge declares the law invalid because it is unconstitutional. It is a judges job to uphold the law and to decide if a law is constitutional... That is why the very first time a law is enforced the judge has to make the proper choice. It sets a legal precedence that is hard to break...

Now about your fasination with making incorrect analogies. You are not making any valid points with them.

Are you telling me that you want to pay $250 everytime you 'invent' a componet so it is protected? Copyrights are free. And make a lot more sense. Next you will want to patent a book. Personally i like being covered the second i create something. And if you don't think it takes creativity to write a program, you have issues.

 

[___]

@Tdata: you're gonna have to read more of the thread or read more carefully what I'm saying. Judges do declare laws unconstitutional, unenforcable, etc. I've already stated that. That's totally different from making general ethics decisions that go contrary to the law on a case-by-case basis. If a Judge declared that a EULA contract violated constitutional rights or statutory restrictions he'd be well within his power and excercising it properly, but that's different from them saying "I don't think you guys need any more money and this woman was doing the guy a favor so the contract doesn't apply to her, see you later suckers".

And yes, my reasons were tuition costs, and of course the complications that arose in terms of scheduling when I started working to help pay :P If you really want to know the story by all means let's talk in PM or another thread but please don't make personal attacks.

As for my analogies, I could just as easly say "next you will want to copyright the combustion engine". The issue is not whether it takes creativity, it takes creativity to invent anything. Once again please review the thread more, check the links and educate yourself on intellectual property, and try to temper your presuppositions and be open minded if you want to participate in discussion. It is true that some of the analogies I'm using are a little off base, part of debate is pointing out where the flaws in logic are and providing effective counterpoints, not making personal attacks and being insulting.

I think I have made some pretty fair points, and I have conceded to those made by others, Ccoa in particular. I'm not going to address the rest of yours because I already have earlier in the thread and they've been raised by people making effective arguments.

Ultimately I'm not here about who's right or wrong, I enjoy intelligent discussion and I don't mind being the guy on the losing side or with the contrary point of view if it means getting people and myself thinking. Please read what everyone has to say, consider it fairly in turn, avoid knee jerk reactions and back your arguments up with supporting statements.

 

[Rhazdel]

Incorrect. Patents and Copyrights both, by definition, cover intellectual (intangible) property. They are both ways of legally protecting ideas. Laws against theft, property damage, embezzlement, etc. cover the tangible results of those intangible ideas. Check those two links I posted, please.

Just because it is illegal doesn't mean that people won't still do it. If you release source coding with a program, all anyone will do is buy it, copy it into a compiler, compile it and give it to their friends. At least through encryption that task becomes a little bit harder and discourages bootlegging a little bit.

I wasn't talking about software design, I was talking about the design of the processor. I think the fact that at a quick glance you can't tell the difference is pretty telling on the similarity between the two fields :D And all programs still operate that way. When you compile a program you compile it into binary code, which is just a long series of instructions on how to manipulate data in memory and it looks a whole lot like that (although that example was a little inaccurate since it's unlikely you'd be manipulating only 4 bits of data at a time these days). I was talking about how the engineers arrange the transistors on the die to complete the operations those instructions are asking for, and frankly it's quite mystifying to me. I mean I get how transistors work and if I sat down and thought about it logically long enough I could probably build a basic pocket calculator or something, but the operation of millions of microscopic transistors in a processor... that's just wow.

Then why don't you go to school to become an engineer? Do you honestly think that by looking at billions of lines of binary you are going to understand the intimate workings of computer processors? Your appeal to release source coding with software/hardware only matters to a very small group of people, and, as history has show, a majority of those people really only want to look at coding for illegal/immoral purposes, rather than "educational reasons". If you want to learn more about how a particular program operates, take classes for it and then figure it out.

 

[___]

Just because it is illegal doesn't mean that people won't still do it. If you release source coding with a program, all anyone will do is buy it, copy it into a compiler, compile it and give it to their friends. At least through encryption that task becomes a little bit harder and discourages bootlegging a little bit.

We're not talking about copy protection right now, but rather the application of the concept of copyright. I know it's related, but not directly to the point and I want to keep this focused since we did a lot of aimless wandering earlier. Also, see the following:

In a software patent scheme you would not likely patent an entire, functioning piece of software but rather components (...) It would not be a snapshot of a code but rather a diagram of the code - much like a machine patent, if you've ever seen one. Nothing would stop a company from never releasing the exact source code

We can do copy protection in another thread if you'd like.

Your appeal to release source coding with software/hardware only matters to a very small group of people

Well unless you consider the large open source community. It also may be because most people who might be interested haven't really thought about it. If I could get every person in the world who might be interested to have this discussion and the vast majority of them still said "not interested" I'd be more convinced. Right now what I see is a large vocal group of free information activists, a small but powerful group of lobbyists and a ton of people who don't think about it and don't care. I don't demand you agree, as long as you give it fair consideration.

as history has show, a majority of those people really only want to look at coding for illegal/immoral purposes, rather than "educational reasons".

I'm not aware of any historical or scientific studies to that effect, and not for lack of interest. Popular opinion says that, but popular opinion says a lot of groundless, unsupportable things. So I'm going to have to ask for citations here before I can agree.

If you want to learn more about how a particular program operates, take classes for it and then figure it out.

That's a perfectly valid way of doing things, but it's not the only way. Many people with little or no formal education contribute valuable inventions and insights in many fields of science. If everything worked on those principles, everyone who couldn't afford an education would be valueless except as a simple worker bee.

Then why don't you go to school to become an engineer?

Not interested in doing it as a career. I don't think I'd enjoy it and the money's not good enough to do it because I have a little interest or talent. I was interested in intellectual property law as a career and still am, but opportunities are fading fast there. Doesn't mean I can't have a layman's discussion about it.

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I also want to bring up that I'm in the middle of moving and will most likely be offline for two to three weeks after Thursday while I wait for internet to get hooked up again so I'm going to be stepping out of this soon.

Update: Time's up! Been fun. Thanks for the discussion everyone. Since I'm the only one supporting my point of view I imagine it's over.