Re: Fwd: A steering committee for the LPF?

From: Lynn Winebarger <owinebar(at)se232(dot)math(dot)indiana(dot)edu>
To: "Ean R (dot) Schuessler" <ean(at)novare(dot)net>
Cc: "J(dot)H(dot)M(dot) Dassen" <jdassen(at)wi(dot)leidenuniv(dot)nl>, spi-general(at)lists(dot)debian(dot)org, spi-general(at)lists(dot)spi-inc(dot)org
Subject: Re: Fwd: A steering committee for the LPF?
Date: 1999-03-23 19:57:01
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On Tue, 23 Mar 1999, Ean R . Schuessler wrote:

> I would like to see us get involved with this.
> Personally, I am curious to see whether we could bring a class action
> suit against the United States government under the arguement that
> software patents, in their current state, violate a Free Software
> programmer's freedom of expression. Freedom of expression is a gauranteed
> human right and is supposed to be stronger legally than a patent, which
> is a tool of convenience. I think it is arguable that many programmers
> are as dedicated to the creation of Free Software as any religious person
> is to their chosen method of worship.
> E
I don't think we need to contest it on 1st amendment grounds. The
thing is, distributing source code (maybe even binary code) is expression
and can't infringe on a patent. But what does infringe on the patent is
when the software is actually loaded into the computer and executed, which
then makes the computer an instantiation of the patented device. In
essence, you "manufacture" an infringing device each time you execute the
At least, this is what I've gathered. The distinction is a technical
one, but it's consistent with the way the courts have ruled between the
copyrightable parts of software (the actual expression) versus the
patentable parts (the actual functioning).
I don't know if you could be sued for "contributory infringement",
The better grounds for a lawsuit defense (I think) would be to argue
that it's in the public interest to foster free software development.
>From what I've been reading, the courts (particularly the Supreme Court)
consider themselves to be the arbiter of what this is and have
used it in the past as grounds for revoking patents. I'm not sure about
the current SC, though. But Justice O'Connor did make an encouraging
statement in one case that I've seen quoted several times (though of
course I can't find it when I look for it) about how the IP laws exist to
serve the public, not the IP monopolist, and when those two conflict, the
public wins.

I am not a lawyer, I've just taken an active interest in this area,
since it seems to me we have a fundamental interest in making the law work
for us (as opposed to only those who can pay for it).



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