Gene Patents held invalid in US

Gene Patents held invalid in US

A judge in the US has ruled that human gene patents are invalid, apparently on the basis that the extraction of a gene is not an invention or discovery.   As this is a district court ruling, expect appeals. The patents the subject of the litigation were for breast cancer genes BRCA1 and BRCA2.  There was a kerfuffle about these in Australia a year or two back, the upshot of which was that (if I remember correctly??) they were licensed royalty free in Australia by the holder of the exclusive rights over the patent rights here.   Invalid in the US doesn’t mean invalid in Australia, but it may take pressure off Australia going down the wrong track in awarding patents.

See ACLU Press Release for more.

42 and the inadequacy of Wikipedia

42 and the inadequacy of Wikipedia

I wanted to know the page or chapter reference of 42 (actually, I now notice, ‘Forty-two’) in HHGTTG.

Do you think I could find it?

No, of course not, so I looked on Wikipedia.  Wikipedia explains it in detail but omits the one citation which is necessary (it does, not entirely unhelpfully, cite the book, but that still leaves 159 pages to scan).

For those who care, I gave up and scanned through the book.  It took a little longer b/c I assumed it would be in an italicised section from the Guide.  It isn’t.  It’s page 135, at the end of chapter 27.

Dealing with OOo’s braindead context sensitive toolbars

Dealing with OOo’s braindead context sensitive toolbars

[Update 1 March 2012: Verion 3.5 of LibreOffice is still, apparently, brain damaged in that it still has these stupid context sensitive toolbars but they pop up at the bottom in my new install, so it doesn’t cause the text to reflow.  Haven’t fully checked whether they can be turned off anywhere.]

[Update: Link to bug report at bottom of article]

Someone at OOo decided that context sensitivity of toolbars was a good idea.  I disagree (and have lodged bug reports), but the OOo people prefer to agree to disagree on this issue.  What happens with context senstivity is that when OOo senses you are doing something which might need a specific toolbar, it pops it up for you.  Equally, if it thinks you aren’t it will remove that toolbar for you (how kind).

So imagine this situation:  you have a document which includes some numbering.  You’d like to add numbering to a currently unnumbered paragraph.  So, you click on the paragraph and then go up to the numbering toolbar.  In the split second it’s taken you to click and move, OOo has realised you’ve just clicked on an unnumbered paragraph – so you mustn’t want the numbering any more.  Just as you’re about to click the button on the numbering toolbar to add numbering, ‘poof!’ it disappears.    Similarly if you’re scrolling through a document with both numbered and unnumbered paragraphs it constantly redraws the screen adding and removing the toolbar (and offsetting and un-offsetting the text as a result).

This behaviour cannot be overridden.  If you would like to have, say, the numbering toolbar persist, that’s your bad luck.  Just because you might have pinned the numbering toolbar somewhere doesn’t mean anything.  OOo will take control of it and turn it on and off (usually when you least expect it).

Whatever one might think of context sensitivity of the toolbars (and frankly I don’t see the point) the failure to support an override of this behaviour is particularly egregious. So far as I can tell, there is no way to vary this psychotic behaviour of the toolbar, one must simply grin and bear it.  However, one is not completely without redress.  The UI Nazis haven’t completely had their way with OOo.  The solution to this <cough> ”feature” lies in the buttons – all of them – and their removal.  I have done it and I am greatly relieved.  The toolbar still flashes on and off in its impotent stupidity constantly as I edit my documents.  No longer, however, do I have to put up with it moving my text about while it fulfills its destiny.  Now relegated to a few small pixels the numbering toolbar appears anonymously beside my other toolbars, and disappears equally so.  So much so that I hardly even notice it happening, although once in a while it catches my eye.  Like just a few moments before I started this.

[for Planet LA’s benefit, the title displayed in planet comes from the title on this screen shot I took.  The real title is replicated in the first line of the post.]

[OOo Bug reports:  “Context Sensitivity is one of OO’s key features, thus this behaviour will NOT be changed at all.“

And Issue 59706]

Disgruntled Lego Customer

Disgruntled Lego Customer

The process of acquiring a Mindstorms robot kit has left an extremely bad taste in my mouth.  Lego apparently has something of a reputation for openness with the Mindstorms Kit (although the programming software is both closed and won’t run on Linux – and you’re not licensed to develop commercial applications with it).  However, they do not seem to have a reputation for free trade.  Pricing for the kit on Amazon equated to about AU$330 delivered (Amazon have just sent me an email suggesting I buy it from them based on my earlier searching – which has set off this post).  This compares very favourably to local pricing of AU$450 (not delivered).   Or, it would compare favourably if someone was willing to ship one to me from overseas.  While there are a couple of small places that will, they don’t have the volume, so shipping costs are very high.  Amazon claims “warranty issues” as the reason.  For a bunch of plastic which runs off AA batteries, and for which an identical product is sold here?  GMAB – I call baloney.  I can only assume that distributors have been heavied by Lego.  This reeks of market segmentation.

In rough terms,  for every two sets an Australian school can buy,  a US school can buy three.  Yet another example of how copyright hobbles innovation in this country.

Update: I’m not being particularly critical of Amazon (except perhaps for sending me an email asking me to buy a product that it has already refused to ship to me) because a number of suppliers wouldn’t ship it (including from Singapore and Hong Kong) – this might not have been obvious from the post.  It would be nice if this was all just a coincidence

The Patent War of All Against All

The Patent War of All Against All

“Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man. For war consisteth not in battle only, or the act of fighting, but in a tract of time, wherein the will to contend by battle is sufficiently known: and therefore the notion of time is to be considered in the nature of war, as it is in the nature of weather. For as the nature of foul weather lieth not in a shower or two of rain, but in an inclination thereto of many days together: so the nature of war consisteth not in actual fighting, but in the known disposition thereto during all the time there is no assurance to the contrary. All other time is PEACE.”

Hobbes, Leviathan, Chapter XIII, paragraph 8

Glyn Moody has written a post about a system called U-Prove.  Glyn notes that the software is being licensed under a BSD licence and notes that is a good thing, but then observes that there is a patent encumbrance on the code, and indicates this is a bad thing.    In a comment, Sam Ramji refers off to this article of mine, kindly remarking it is a ‘good post’.

The essence of Glyn’s argument is that the OSP does not preserve the freedom of free software, so it is not sufficient.  Sam appears to be adopting my comments to the effect that it’s hard to single out one company for the patent blame game.

In the context of free software patents are problematic.  In the ideal world patents on software wouldn’t exist and there wouldn’t be a problem.  However, they do exist.  Moreover, part of the reason they exist is because of a variation of mutually assured destruction – many businesses believe they need to acquire patents in order to defend against other patents.*  Jonathan Schwartz sets out some of the sad, tawdry circumstances in which this logic plays out here.

I think it is a non trivial problem to find wording which preserves just the defensive potential of patents (which, is actually their offensive potential limited to specific circumstances of exercise)  while preserving freedom when licensing software.  Some of the more detailed free software licences attempt this.   It is, I think, a more difficult problem to craft such wording to apply to standards – because standards purport to be agreed by some collection of people, while freedom requires that everyone be permitted to pursue their own goals.   Thus, any ‘promise’ or ‘covenant’** which is limited to an agreed specification must necessarily be inconsistent with freedom in a way qualitatively different to a patent clause in an open source licence.   Moreover, any wording which applies to a particular version of a specification will be inconsistent with the evolution of that specification.  In short, promises made in relation to specifications are likely to always be problematic (the best to hope for is a disclaimer  – per W3C).

Therefore, if the words themselves are likely inadequate, the issue of who is saying the words, and what one can reasonably read into them becomes much more important.  In the OSP post that Sam refers to I explicitly reference  another, earlier, article on the OSP which calls this issue out.  With this in mind, I note that Microsoft has recently chosen to specifically draw out the Linux/open source angle in its cross licensing deals with Amazon[3] and IO Data[4].  It didn’t need to, but presumably chose to.  It seems reasonable to conclude this is signaling.  These are grounds that would justify a reasonable person finding the OSP inadequate.

If Microsoft wants people like Glyn to trust them, they should perhaps incline against, rather than toward making the will to contend by battle […] sufficiently known.

Notes:

* This, by the way, is much the same argument used by Hobbes in favour of the need for a common power to counter the war of all against all (hence the quote above).  In this case however the common power (parliament) rather than saving us from a state of war of all against all has plunged some of us into a version of it.

** (I distrust these words – if it is a licence why not call it that, but perhaps they are US terms of art?)

[3] ‘…said Horacio Gutierrez, corporate vice president and deputy general counsel, in the news release. “Microsoft’s patent portfolio is the largest and strongest in the software industry, and this agreement demonstrates … our ability to reach pragmatic solutions to IP issues regardless of whether proprietary or open source software is involved.”  The press release is here, it doesn’t fall over itself as much as the IO Data one below.

[4] ‘...said David Kaefer, Microsoft general manager of intellectual property, in a statement announcing the latest deal. “Microsoft has a strong track record of collaboration with companies running Linux-based offerings, and this agreement is a reflection of our commitment to partner with industry leaders around the world.” ‘ In fact, on Microsoft’s press release page (at 12 March 2010) the call out comprises of the words:  “I-O Data customers will receive patent covenants for their use of devices running Linux and related open source software.”  The press release is at pains to refer to it.

Free Software is Principled

Free Software is Principled

I recall, several years back now, being in some sort of forum somewhere arguing over the implementation of anti-circumvention legislation in Australia.  I recall Rusty Russell talking about ghostscript’s [?] handling of pdf documents at the time and how it respected restrictions settings in the pdf documents.  That is, despite being able to ignore them, ghostscript’s authors decided to respect them.   In practice that would mean that most ghostscript users would also respect those settings.

By way of contrast, today, looking for information about pdf to text conversion tools I came across closed source software whose primary purpose is apparently to remove restrictions from pdf files.  In my experience free software is typically more principled than its closed source counterparts – perhaps stupidly so.

The Onion: Nation Shudders At Large Block Of Uninterrupted Text

The Onion: Nation Shudders At Large Block Of Uninterrupted Text

‘…”Why won’t it just tell me what it’s about?” said Boston resident Charlyne Thomson, who was bombarded with the overwhelming mass of black text late Monday afternoon. “There are no bullet points, no highlighted parts. I’ve looked everywhere—there’s nothing here but words.”‘

Story here

James Bradley responds on Slattery CAL Article

James Bradley responds on Slattery CAL Article

A little while ago Luke Slattery wrote an article on the amounts returned by CAL to authors.  The Australian has published a response from James Bradley, ‘one of three author directors on the board of the Copyright Agency Limited’.   Luke Slattery has also added an editorial comment (describing criticism of his article as being at times “histrionic”) at the end.   There does not seem to be a place for Creative Commons material in the Bradley article.

You warrant that you’re bound by this contract

You warrant that you’re bound by this contract

Found in some Ning terms:

You represent that you are of legal age to form legally binding contracts and are fully able and competent to enter into the terms, conditions, obligations, representations and warranties set forth in these Application Developer Terms.

These sort of terms always annoy me.  As a matter of fact, either the person is able to be bound by the contract – in which case the warranty is redundant – or they’re not  –  in which case the contract, and therefore the warranty, is not enforceable.

What is the point of including a clause like this???

LA Funds Important Legal Research on Free Software Compliance

LA Funds Important Legal Research on Free Software Compliance

Over the past twelve months or so I’ve noticed an upswing in enquiries about free software compliance.  For example, someone might be seeking access to source code for embedded devices with Linux and/or Busybox on them.   One of the key problems for pursuing compliance is the legal concept of  “standing”.   That is, does the court think you have a right to press the claim in question?   So for example, if you see someone (A) breach a contract with someone else (B), a court will probably not let you sue A, basically because that is B’s business [1].  B might not be concerned about the breach, or B might have a relationship with A (or someone else) that might be jeopardised by suing A, so it should be up to B to make the decision about whether to proceed with a suit.  Moreover, A has not infringed a right that you have, so why should you be able to sue?  You’ve not suffered damage, so why should you be able to sue? In short, a court seeks to limit the people bringing actions to only those people whose rights have been infringed.  So,  if you, not holding copyright, see someone breaching the GPL, you can’t sue them in copyright to enforce compliance.

The term “free software compliance” is a short form of compliance with the licence terms for the free software.   In this case, the relevant person whose rights are infringed is the person who granted the licence.  That is, the person who holds the copyright in the software.  Therefore, to bring a court case would require the copyright holders to be parties to the case.  Given that copyright holders are largely concentrated overseas this presents problems for compliance within Australia.  While it is possible for foreign copyright holders to initiate and/or participate in Australian proceedings, it is not simple as the mere distance presents logistical problems.   There are other practical problems that a foreign copyright holder faces.  For example, they may be required to be present in Australia in order to give evidence.   Even where the copyright holder is in Australia they may be reluctant to pursue proceedings.  For example, they may not think it justifies the time commitment they would need to make, or they may not want to be exposed to the possibility of the award of legal costs if they are unsuccessful. I have spoken with some foreign copyright holders and generally they are happy to help, but can’t commit to spend much time helping.

This is where the Trade Practices Act (TPA) is relevant.  The TPA has a very wide concept of standing.  Practically anyone has standing to sue for a breach of the TPA.  If a competitor puts on a misleading advertisement you don’t need to have been misled in order to have it corrected.  You don’t need to show that you (or indeed anyone) suffered a loss.  The mere fact of a breach is usually enough for anyone in the community to enforce compliance with the TPA.   The TPA is therefore particularly relevant for free software compliance.  If a breach of the terms of a licence are also a breach of the TPA, then you don’t need the copyright holders in order to take action.  You can leave them out of it entirely and, instead, rely on your rights as a consumer.

Enforcement under the TPA has other benefits.  First, courts have tended to interpret the Act in a way which favours consumers (not surprising as this is the point of the legislation).  Second, the consumer protections set out in the TPA are pretty straight forward.   You may have heard of “section 52”, which provides that a person must not engage in misleading or deceptive conduct in the course of trade.   In the case of section 52 intention or knowledge is not relevant.  If someone is unintentionally misleading, they will still be caught by the section.   Finally, the TPA comes with an administrative structure for enforcing consumers’ rights in the form of the ACCC and its State and Territory equivalents.  That is, you need not even go to court in order to enforce compliance.  You can, instead, rely on consumer rights procedures (at least in the first instance – if all else fails you may still end up in court,[2] and even then the consumer body may assist you with the case – as happened up to the Federal Court in the groundbreaking Stevens v Sony case).   This may involve some education of the consumer protection people, but, ultimately it’s their job to protect consumers so they must come around sooner or later.  Essentially, vendors who do not (for example) supply source code when they are obliged to are depriving consumers of a legal entitlement.  Imagine how they would react to a vendor selling a car with a wheel missing.

Last year, I was contacted about a potential compliance issue for a router product in which Busybox was embedded (the company in question has since gone into administration).   As  is often the case, the person contacting me did not have a lot of money to spend on legal advice or drafting.   In these cases people don’t tend to contact me until they have first tried to get through to the relevant vendor, so it is usually at at least the first level of escalation.   It seemed that the best way to deal with these cases, at least initially, was to try to create some “self help” materials for people to pursue themselves, without having to engage a lawyer.   To do this, however, would mean that the initial issue of standing needed to be overcome, so I turned to the TPA.  After a short consideration I came to the view that there were profitable lines of inquiry in the TPA, but the mapping of free software to the TPA is not straight forward.  How would the research be  funded?

I was told about the Linux Australia grants system and discussed with one of the then LA committee members whether a “compliance how to” might be worth doing.   I put together two proposals to put some materials together:

http://lists.linux.org.au/pipermail/linux-aus/2009-December/017823.html
http://lists.linux.org.au/pipermail/linux-aus/2009-December/017822.html

Initially, the committee wasn’t convinced that this work would be of value to the community – see after item 5 of this post:

http://lists.linux.org.au/pipermail/linux-aus/2010-February/017896.html

In their next meeting, (last night, 3 March), the Linux Australia committee decided to go ahead and fund the first proposal I submitted (I am making a 1:1 in kind contribution of my time).  This is important research into what arguments might be raised under the TPA if someone is not complying with a free software licence (a decision on the second proposal has been deferred), so the decision is excellent news.  Only yesterday I received another referral – via the SFLC.    They wanted to be able to take it to the next stage and send something more formal to a vendor they’d contacted, but didn’t think it worth spending much money on.  Once the research phase is done, producing notices such as this will be substantially easier (because the background of what is to be said is already set out).   The outputs of the research will be public.

If you know of devices sold in Australia that you think are non compliant, send them to me, because I may as well start a list.

[apologies if you saw a draft of this up – the autosave put it up by mistake]

Notes:

[1] This is talking only about civil actions.  If there is a crime involved different issues come into play.

[2] The minority of cases end up in court.  By and large things are resolved without recourse to courts.