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What is the relative advantage of putting something into the public domain versus releasing under an Apache 2 or MIT license? The latter doesn’t restrict anyon
by mikece 8y ago
What is the relative advantage of putting something into the public domain versus releasing under an Apache 2 or MIT license? The latter doesn’t restrict anyone’s use AND establishes a public record to refute what Google is trying to do. Additionally, communications by email could be via GitHub issues and open to all to see.
- enedil 8y agoBecause it's algorithm and not code.
- ajb 8y agoenedil is correct. To expand on that: MIT and Apache2 grant a licence to copyrightable expression. But the literal code is not what is patented, the idea is. Granting a license to the code doesn't automatically prevent someone else from patenting the idea. MIT doesn't say anything about patents. Apache2 additionally grants a licence to any patents which the author has which cover the work, and also tries to prevent someone using the work and then suing other people for patent infringement. But it does so by saying " any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed." Which is a null threat in this case, as the idea is to try to prevent there being a patent in the first place. You could argue that the author should have patented the idea, and then freely licensed it. But since patents cost thousands each, that's a bit much to ask.
- evrydayhustling 8y ago> the author should have patented the idea, then freely licensed it This is the brutal truth of how crappy our current patent mechanisms are. The definition of what constitutes a patentable extension to practice of ideas that are well known or explicitly in the public domain is very weak. So, until something is patented and actively protected by bulldog lawyers, there is a risk of someone else trying to umbrella it in their own patent. Google's move can even be justified on defensive grounds that some other jerks could do the same. But the core problem is an arms race to the bottom of what trivial distinctions can be claimed.
- chimeracoder 8y ago> This is the brutal truth of how crappy our current patent mechanisms are. Being granted a patent by the USPTO doesn't guarantee that the patent is actually valid. It's technically possible for them to grant identical patents to two separate people by mistake, and then the courts have to determine which one is valid.
- hedora 8y agoHaving a patent doesn’t guarantee someone else will not patent the work as part of some other patent. Patent examiners miss things sometimes. Publicly disclosing the idea in a way that can be verified after the fact establishes prior art just like filing a patent does. I’m not a lawyer, but I do know there are services that inexpensively publish inventions and vouch for the publication date after the fact. Also note that the vast majority of patent litigation never makes it to trial, so whether a patent is “valid” or not is a gray area in practice.
- evrydayhustling 8y agoThe problem is defending that disclosure as prior art when someone bigger claims a patent that improves or puts it into practice, which is exactly what this article is about. Even if you take a few steps to make patenting harder, if you invent something valuable it's eventually a game of chicken about preventing others from claiming the space.
- bingoboingo33 8y agoThe only solution to put an end to the current patent system is to overload it. The equivalent of a DDos attack. Companies should file as many frivolous patent as they possibly can. Eventually, we'll have all the IP lawyers at 100% CPU and the world will be a much better place.
- evrydayhustling 8y ago100% CPU -> 100% billable hours -> IP law is now an incredibly attractive profession -> more capacity for patents / lawsuits... and that's essentially how we got here.
- wtetzner 8y ago> Granting a license to the code doesn't automatically prevent someone else from patenting the idea. But doesn't the fact that the code has already been released mean it's prior art?
- laumars 8y agoCorrect me if I'm wrong, but I think the US patent office doesn't check for prior art (that was one of the cut backs several years ago) so instead prior art is now something that has to be challenged in court.
- DennisP 8y agoOr challenged before the patent is issued. The USPTO encourages this; fees for notifying them of prior art are much lower before issuance.
- mbrumlow 8y agoWait a fee is imposed? I get why I think but if your posting of prior art proves to be true then you should have your fee refunded.
- DennisP 8y agoI'd have to check but if I remember right, before issuance there's no fee for less than 20 items of prior art, and just a flat $200 fee for more. After issuance I think the fee is $35,000.
- throwaway2048 8y agoso you have to pay them $35,000 to show a patent they issued is bullshit. Outrageous.
- monochromatic 8y agoThat is completely wrong.
- mcbits 8y agoThat sounds backwards if I'm reading you right. An idea can't be patented (well... in theory), but a new invention based on an idea can. Google apparently thinks they've got a new, non-obvious invention based on Duda's public domain work, which may itself have been patentable but wasn't. That's one reason why companies rich enough to spam the patent office tend to do so. Company A invents X. If they don't patent it, then Company B can invent X+1, a minor improvement on X, and patent X+1 themselves. Now Invention X can't compete with X+1, so Company A invents X+2, an improvement on X+1, but now they have to pay license fees to Company B even though they invented the original thing! Solution: just try to patent every stupid thing.
- philipov 8y agoAnd that is why patents should be abolished, in a nutshell.
- giancarlostoro 8y agoSoftware patents for sure. Not sure about algorithmn ones. Say you invent this exact compression algorithmn and want to patent it but you can't and Google steals it when you wanted to license it so you can fund a company that builds better compression algorithmns or whatever. Google is going to rip out of your profits.
- tacon 8y agoNo, the way to protect yourself is to disclose anything you don't want to patent, but don't want patented against yourself. IBM had a great system for several decades[0]: [0] https://en.wikipedia.org/wiki/IBM_Technical_Disclosure_Bulletin https://en.wikipedia.org/wiki/IBM_Technical_Disclosure_Bulle...
- DennisP 8y agoJust publishing prior art, in a way that proves when you did it, is sufficient. It can still be a problem if you're not aware your idea is being patented, so the patent office doesn't find your prior art, but that's not an issue here. There are also services where you can register your prior art, which say the USPTO uses them when evaluating claims; I don't know how useful they are in practice.
- fma 8y agoWe (USA) and are a first to patent country now. https://techcrunch.com/2013/02/16/first-to-file-a-primer/ https://techcrunch.com/2013/02/16/first-to-file-a-primer/
- DennisP 8y agoYes but that just means if two inventors are working on something privately, the first to file gets priority, instead of the first to invent. Public prior art still invalidates the patent.
- Nomentatus 8y agoNo, recent court decisions say public isn't enough - the invention has to have become fairly well known to practitioners of the art. Mere publication is nothing now.
- DennisP 8y agoCan you reference that? Recently I both consulted an attorney on this stuff, and did my own research, and that's the exactly opposite of what I've found.
- pfarnsworth 8y agoYou can't patent ideas only specific implementation of ideas.
- maire 8y agoSo - prior art is no longer good enough? I was at Xerox when they were fighting a patent on their ideas. At that point in time all you had to do was prove prior art on the idea. Xerox used their notes during software development plus the code to prove prior art. Similarly I was at Apple when they fought a basic patent on color matching. Apple succeeded in fighting the patent then proactively started patenting everything.
- ajb 8y agoI certainly hope prior art is still good enough. The GP was asking whether the licence under which you publish your prior art should make a difference - I don't think it does.
- radley 8y ago> The America Invents Act signed on September 16, 2011, switched U.S. right to the patent from the previous "first-to-invent" system to a "first-inventor-to-file" system for patent applications filed on or after March 16, 2013. https://en.wikipedia.org/wiki/First_to_file_and_first_to_invent https://en.wikipedia.org/wiki/First_to_file_and_first_to_inv... Thought it could be challenged as unconstitutional: > Many legal scholars have commented that such a change would require a constitutional amendment. Article I, Section 8, Clause 8 of the US Constitution gives Congress the power to “promote the Progress of ... useful Arts, by securing for limited Times to ... Inventors the exclusive Right to their respective ... Discoveries.” These scholars argue that this clause specifically prohibits a first-inventor-to-file system because the term "inventor" refers to a person who has created something that has not existed before. (Wikipedia)
- ldjb 8y agoThe MIT License requires copies of the software to give attribution to the copyright holder, as well as the licence text. Though it is a very permissive licence, this does pose some barrier to using the software. Some companies are averse to using software they need to provide attribution for, but would not mind using software that is in the public domain. Releasing software to the public domain ensures that as many people as possible can make maximum use of it. That's not to say it's better to release software to the public domain over using a permissive licence. It really depends on the terms under which the developer wants people to use the software.
- chii 8y ago> Some companies are averse to using software they need to provide attribution for why would that be? They certainly already need to put in a license page/dialog/display somewhere, so it makes so little difference adding an extra piece of text there.
- ghaff 8y agoPerhaps because it can be error-prone to keep attributions together with the thing requiring attribution. This is certainly an issue with things like photos and Creative Commons. Anyone who uses CC-BY-SA photos in presentations knows very well that, as photos get reused and mixed in different presentations, it's very easy to end up dropping a credit somewhere. I know I try hard not to do so, but I'm sure I still miss things from time to time.
- MattSteelblade 8y agoLicensing is not that simple. From the Creative Commons CC0 page. "Dedicating works to the public domain is difficult if not impossible for those wanting to contribute their works for public use before applicable copyright or database protection terms expire. Few if any jurisdictions have a process for doing so easily and reliably. Laws vary from jurisdiction to jurisdiction as to what rights are automatically granted and how and when they expire or may be voluntarily relinquished. More challenging yet, many legal systems effectively prohibit any attempt by these owners to surrender rights automatically conferred by law, particularly moral rights, even when the author wishing to do so is well informed and resolute about doing so and contributing their work to the public domain."[1] As an aside, I have no sympathy for companies that would refuse to use software licensed under MIT because they need to provide attribution. [1] https://creativecommons.org/share-your-work/public-domain/cc0 https://creativecommons.org/share-your-work/public-domain/cc...
- mikece 8y agoHow about an “On the record” public domain dedication where dates, code, issues, wiki, etc are a matter of public record and establish legal grounds of prior art for countering patent issues like this?
- protomyth 8y agoI remember reading that IBM once did just that. I think they submitted something to the US Patent Office, but I cannot remember the reference. Might have been in the 360 days.
- matthewheath 8y agoYes - Technical Disclosure Bulletins[0] -- [0] https://en.wikipedia.org/wiki/IBM_Technical_Disclosure_Bulletin https://en.wikipedia.org/wiki/IBM_Technical_Disclosure_Bulle...
- cure 8y agoYes, it's called 'defensive publishing'.
- rectang 8y agoI explicitly put some code samples under CC0 because I want people to feel complete freedom to copy and paste the code without needing to maintain attribution or worry about licensing compatibility. For example: https://jsfiddle.net/rectang/fwto2ejh/ https://jsfiddle.net/rectang/fwto2ejh/ The CC0 dedication is at the bottom; you have to scroll to it. I chose to slightly modify the CC0 dedication for this to comport with the fact that you won't receive a copy of CC0 with the materials. I didn't like having to do that and wish that Creative Commons would provide an official accommodation. I'm reasonably confident that my change won't materially affect a future court case over my code though. :) ETA: I strongly recommend that other people DO NOT change dedications. I'm reasonably educated on these topics for a layperson, but not a lawyer. I mentioned the change as a warning that my dedication should not be considered a CC-approved template.
- atmartins 8y agoCan you elaborate on why this is advantageous to the situation in the article?
- rectang 8y agoFor the purpose of establishing prior art, it is not advantageous at all in comparison. The article talks about how patent examiners have limited resources and tend to rely on searching the patent database to find prior art. Putting something on the internet with a CC0 dedication is not going to make it any more visible to them. I'm confident that there are no patentable ideas in my code and my purpose is just to minimize the burden on downstream users of copyright licensing. If there were patented ideas in my code that I wished to license to downstream users, CC0 would actually be a poor choice, because it explicitly excludes a patent grant. That's why CC0 is not endorsed by OSI, and there's been a lot of hand-wringing over that clause. Note that if you do copy/paste public domain code into a non-trivial project, you still should record its origins in version control at least -- even if the license doesn't require attribution.
- DannyBee 8y agoThere are plenty of countries that don't have a public domain, or different patent laws, or ....
- DannyBee 8y agoFWIW: Email is a crappy medium for prior art. Most emails rarely delve into the how to actually do something, most stop at suggestions of things to try. If i email you a problem, and you email me "you should try a hashtable", and then i reduce the problem to practice using a hashtable, i will likely still be able to patent it. It depends on the country/details, but yeah. At best, you may or may not be named co-inventor. (Even here, you can see that one of the arguments the examiner has to make is that it would be obvious how to implement the suggestion. This is because if it wasn't true, it would still be patentable) Code is a better medium, but there is no way for most patent offices to understand what code does. But i would never rely on issues and emails being a good medium for prior art. You'd really need a design doc and reference impl if you want it to be considered for real.