From: doug@netcom.com (Doug Merritt)
Date: Tue, 28 Sep 93 19:31:38 PDT
To: cypherpunks@toad.com
Subject: Re: the public key minefield (fwd)
In-Reply-To: <svet@nrcbsa.bio.nrc.ca>
Message-ID: <9309290227.AA09947@netcom4.netcom.com>
MIME-Version: 1.0
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[ In the following 100 line post about the origin and philosophy of relevent
  law, I gradually lead in to privacy issues; I discuss U.S. laws
  regarding patents and privacy and such because I am largely unfamiliar
  with such laws in other countries; mea culpa.
  
  If you don't really care about legal issues, skip this. ]


Svetlana Borisova <svet@nrcbsa.bio.nrc.ca> said:
>smb@research.att.com wrote:
> And if you do -- well, then, the patent system has succeeded in its goals,
> in that the monopoly assigned to someone else has stimulated you to find
> another way to do things, and thus furthered the useful arts and
> sciences.

>  Of course, wonderful idea!  Hey, let's patent all irrigating systems
>so that people have to think of other ways to make plants grow.

I agree that the patent system in the U.S. (and elsewhere, 'though I
know much less about that) has severe faults in implementation. The entire
area of software patents is being grossly mishandled, for instance.

On the other hand, you seem to have a distaste for the entire *theory*
behind it, and I must differ on that point.

The legal philosophy of patents is to encourage invention that will be of
value to society in general. It is *not* directly intended for the benefit of
the person holding the patent, although it often seems to work out that way.

"smb" is referring to that philosophy. The alternative to the general
philosophy is to refuse to grant legal protection to invention.

>The goal of patents is to give a researcher a reward for his invention; to
>give him the opportunity to make money off it.

This is incorrect; ask any patent attorney. In the U.S., anyway. Ask
a Canadian patent attorney...but I'm 99.9% sure that Canada follows precisely
the same legal philosophy.

In the U.S., the legal philosophy is derived from the fundamental meta-
philosophy of its law which evolved out of British common law dating back
to at least the Magna Carta, which is that (loosely) the purpose of law is
for the common good. Every year there are cases in the U.S. where judges make
a "surprising" decision that overturns the apparent letter of the law
in favor of an appeal to the common good of society.

Case law is filled with such things.

There is always a tradeoff against rights of the individual. But the Magna
Carta itself was necessary in order to begin to establish some rights for
individuals against that of society (as represented in that time by the
sovereign). Similarly in the U.S., the Bill of Rights acts to establish
those minimal rights. But whereever the Bill of Rights is not explicit,
on average you can expect courts to rule in favor of the rights of society.
(And sometimes even then...)

There are some cases where this is easy to view as a bad thing, others
where it seems clearly a bad thing. But there is nonetheless many centuries
of tradition behind this approach.

Patent law is merely one more example. As smb said, it offers a monopoly
for an individual, which would usually be considered to be contrary to
the good of society. But it does so in order to foster more invention,
which is considered to be a good for society. It simply appeals to individual
avarice for the sake of the common good, trading off the global long term
good against the short term loss.

In short, it has an unusual lack of short-sightedness to it...in *theory*.

Patent law most certainly and unquestionably is *not* in existence for the
benefit of the inventor, like it or not.

If you are implying that you think that there should never be legal
protection for intellectual property of any sort, as e.g. Stallman has told
me he believes, then we'll just have to agree to disagree.

Stallman believes that such a philosophy is in favor of individual rights,
but historically that philosophy has resulted in a *loss* of individual
rights. But then, Stallman isn't too hot on history of law...

If on the other hand you merely mean that you disagree with the way
that the patent system is working out in a lot of cases currently in
the U.S., then you should be more careful to distinguish the legal
theory from the legal implementation of the theory.

It's very much like the U.S. Bill of Rights in theory versus practice;
the two can be quite different. Cypherpunks is in large part about privacy.
In Roe versus Wade, privacy was (rather amazingly) held to be an implication
of the U.S. Constitution, and as a side effect abortion was judicially
held to be legal.

The right to privacy is not explicitly spelled out in the Constitution nor
Bill of Rights, though, and so most courts, including the U.S. Supreme
Court, have far more often held that there is no automatic right to
privacy. That's why Roe vs. Wade was both amazing at the time, and has
been in such jeopardy since.

California is an interesting case, because its state constitution *does*
guarantee a right to privacy, but that doesn't slow down the right to life
protests, naturally, just as an aside. :-)

Public key cryptography is a mechanism for privacy. There are vast
complications because:
	1) Privacy is not explicitly guaranteed by the U.S. Constitution.
	2) Privacy is not generally guaranteed by case law, Roe vs. Wade aside.
	3) The patent claims for public key cryptography are overly broad,
	   demonstrating obvious incompetence on the part of the patent
	   examiners involved, yet to correct this injustice would require
	   a test case in which the plaintiff willingly exposed himself
	   to the potential of large damages.
	4) This effectively makes the only known methods for *technically*
	   private long distance communication via any media impractical
	   for *legal* reasons.
	5) Even in California, the state constitution is of no help, because
	   the applicable patent law and privacy case law are in the federal
	   domain, not the state's -- at least by default. Again it would
	   take an actual court decision to decide otherwise, which doesn't
	   appear likely.

The question is what to do given all of this.

If one works within the system, the answer is to find someone with bucks
for a defense and devise a test case...one intended to lose at every level
until it reaches the Supreme Court, where it is then intended to win and
thus establish ultimate precedent.

Chancy proposition. The other in-system approach is to lobby and to educate.
Also chancy. But worth doing.
	Doug
P.S. I am not a lawyer, nor do I play one on t.v.