[ProgSoc] Red Hat asks US Supreme Court to bar software patents

Roland Turner raz at raz.cx
Mon Oct 5 11:30:42 EST 2009


Bryn Davies wrote:

> The SBCA (a piece of copyright
> legislation) was about the duration of an already existing property
> right... it is difficult to say that the congress had overstepped its
> limitations on that one.

Not at all. Sadly, although the EFF made its best bet when they
challenged, it turns out that they over-reached.

The power of congress to grant monopolies in order to promote the
development of ideas can't reasonably be said to include the power to
grant incentives to dead people (who, by virtue of being dead, can't
produce any ideas at all, much less produce more ideas in response to
incentives).

It's even a stretch to claim that the retrospective grants to
still-living people (which, IIRC, represent a minority of the affected
works anyway) provide an effective incentive to produce more ideas

> The software patents issue as I understand it is not so much about
> fixing a magic number but about whether software should be included in
> what Australian law terms a "manner of new manufacture" or whether it
> should be instead protected by copyright as an "expression". There has
> been significant judicial meddling in this area since Darcy v Allin in
> 1603, although again, the courts are unlikely to outright contradict
> the legislature.

I'd never heard of that case. I love the "Her Majesty must be mistaken"
part of the reasoning.

- Raz



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