I really never thought Vonage would lose this Verizon case. I mean, I recognize that Verizon had patents and that maybe Vonage was violating them. But I just thought that Vonage's lawyers would be able to convince a jury that the patents were invalid. (This post describes the patents. I would add to that list is that once you have a VoIP network, connecting that up with regular telephone is both obvious and simple.)

It all just makes me want to spit. Slashdot has devoted a lot of coverage to this issue and from the number of posts on the last item, I think people are getting bored with it. I however, am just starting to get worked up about this.

This post pretty much sums up the state of the patent game these days.

But the real problem with this suit is that Verizon is basically suing over a process. Process patents (including software) are completely infuriating. Could a painter patent a type of brush-stroke or the use of a particular combination of colors? Apparently. Why wouldn't the process of applying paint to canvas in a particular way not be protected just like a business process? I am sure that if painting is ever industrialized, we will see such process patents.

The one saving grace of the whole debacle of the patent system was supposed to be that these companies would have to convince a jury that their ridiculous patents were enforceable. The problem is that the jurors are no more qualified to judge this case than the patent officers who granted the patents in the first place. We expect 12 random people (selected more for their malleability than their wisdom) to be able to make an informed decision over whether switching packets from one type of network to another should be patentable? Give me a break!

And, of course, that same lack of understanding means that this problem will never be resolved. The corporations are the only entities with sufficient power, knowledge and interest to change patent law. However, they're also the entities most heavily invested in the status quo. So, even though the patent system is broken and even though everyone (who would care) knows it's broken, no one will lift a finger to fix it.

AAARGH!

Recently, Slashdot started showing "Tags" for the articles on its front page(s). Consistently, these tags fill up with silly one-liners, inside-jokes, and the like. And consistently, posters complain that the tags are "broken", that no one is going to search for no or itsatrap to find something interesting.

These critics have a very literal understanding of the tagging feature. They need to recognize that while the tags are pretty much useless as a means of organizing information, they're actually quite excellent for displaying the immediate reaction of the unwashed masses (without scrolling through the posts at -1).

Slashdot already has a categorization system for each story. The editors choose the categories and stories can belong to more than one. And if you're looking for stories about Windows Vista, you'll notice the large search box in the upper right corner of the screen.

I think that the tagging beta has shown that while the rank and file cannot be trusted to rationally sort the news, they can be trusted to make the most of any new features slashdot offers. I hope the editors understand this and keep the feature active and usable.

Since no one reads this journal I'd probably be better off shouting this post at the top of my lungs. But this is the only place I can think of where writing about this makes sense and wont just be embarassing.

The debate over whether to allow PDAs or sophisticated calculators in the classroom is as confused as the goals of high school education.

Should the goal be to teach the kids:
A) to think by themselves
B) how to get the right answer
C) how to use advanced tools
D) the underlying concepts in many subjects
E) specific problem-solving devices
F) how to solve a multiple-choice problem ...

In the end, no matter what they set out to do, they end up just baby-sitting. Because one teacher can't teach 40 kids anything in an hour. But he/she might just be able to keep them from running around the halls.

My high school experience was essentially a waste of time academically. I got good grades and was an honor student, but I can count on one hand the classes that interested me (5 out of 64) -- not counting phys ed.

If a teacher considers that a child needs to focus to learn. She needs to be interested and needs to feel like she's accomplishing something, earning more than just a grade. Otherwise she will just do the least work neccesary.

But teaching kids 7 completely disparate subjects each day? Are you kidding? No child can focus like that.

They will flit from classroom to classroom, and their minds will approach each subject from the common denominator of rote memorization. The way one thinks about American History isn't the same as the way one thinks about Calculus or French or Chemistry. "Yes," someone might say, "It requires a context shift. But that's not unreasonable." Except the child isn't aware of that requirement. It all blends together into one long, confusing, jumble.

Using a PDA wont change the education experience at all. A PDA or a calculator is just a tool. The student might be able to get the right answer faster or easier or with less knowledge, but getting the answer isn't the point of the class. It's knowing how to do something, the process of learning, of using the tools available. That's the point of education.

If the only way you can figure out how to teach kids is by handicapping them back to the 17th century, then fine. But if the handicap is imposed because it makes it too easy to get the answer than you might as well not teach the subject. In their future lives, your students are going to need to know how to approach a problem, how to look for solutions, how to evaluate tools and apply them to new situations. That would be the most powerful knowledge you could impart.

Okay, today I created a message filter based on the word "Penis". If I get a message with the word Penis in the subject, it goes right in the trash. I would just delete it outright, but who knows, I might one day get an email from a girl who's truly interested in my penis. And that I would like to keep.

Sweat

EULAs and click-wrap agreements are completely bogus and probably wouldn't hold up in court. Yet, recently (as I was remaking an evaluation version of a product for the company I work for) I found myself putting in place a EULA. Even though I find them reprehensible. It's just a standard one (in fact I got most of it from this), but I initially tried to make some changes to it so that it was more in tune with "Fair Use". And I found out that I didn't really want to make changes. I wanted it to be as strict as possible.

Remember when your mother told you "your face will stick that way!" Well, your face didn't stick that way and there was no chance that it would. But it got you thinking (at least when you were younger) and sometimes, it made you hesitant to pull out all the face-making stops. That's what the EULA is for the software publisher. It's just a warning. Not a contract.

What software publishers want is the user happily installing the software and enjoying the product and recomending it to all their friends. They want them to think highly of the company that made the software, not to be scared or threatened.

But they have to balance what they want with what they don't want. What software publishers don't want are people hacking the software, reverse engineering, or reselling it as their own. And the EULA just says "Please don't do these things! PLEASE!" Beyond that, it's not really a contract, there's no signature, no record of agreement, no bargaining, etc. so it can't bind the user to anything.

Happily there are plenty of laws restricting the way a person can use a product they bought. They're all pretty much covered in a EULA and then some. It's the "and then some" that make people chomp at the bit. But for software publishers, it's just a little extra padding.

The EULA is not a contract

The EULA is not a contract. That's the irony. It shouldn't be presented as a contract and it's not enforceable as a contract. In reality it's a reminder to the user of what his/her rights under law are. And maybe it's a little wishful thinking on the part of the software publisher as well.

By presenting as a contract and filling it with CAPSLOCK and lawyer-sounding words like liability they make most users think that there's bite in the bark. But there aint. It'll kinda freak out some users, but fortunately, they see it only once. And then they get to use the product which is (hopefully) very nice and they forget all about that mean ol' EULA thing.

Where EULAs Get Into Trouble

EULAs that piss people off (and I can't really think of one that doesn't) generally contain a lot of stuff that isn't covered in current copyright law. This gives EULAs a bad name. Since they're dressed up like contracts, it appears like you're signing away rights. But you're not signing anything and a EULA isn't really a contract.

The big offender is: "We are not responsible for this software crapping out". Which really should read "We are not responsible for unintended results from misuse or misnhandling of the software". This means that if I am selling you a disk formatting program and you format your disk without backing up your pulitzer-prize worthy novel, well that's your damn fault. Same as if I sell you a bathtub and you slip and fall in it. As long as I took reasonable precautions and didn't design my product to hurt you, I am not liable.

A EULA that says the publisher is not responsible for any damage that comes from any use of the product is full of shit. But again, since the EULA isn't really a contract, just a notice, it's not really neccesary that it be factually accurate. Instead, they're just covering their bases and trying to discourage as many lawsuits as possible.

Then there's the part about making copies. There isn't much law to back up that you can't make copies for your own personal use. You can make as many copies as you want, according to law. The EULA is not a contract and should not be enforceable and thus cannot bind you not to make copies. However, copyright law prevents you from distributing those copies.

In fact, following up on this point, you should logically have the right to install the software anywhere you like as long as the only person using it is the purchaser. But this brings up a problem. What about a family with one computer, should they buy a copy for each of the family members? Etc... And here we get into some trouble.

Software and Copyright Law

When we start talking about software the way people actually use it, things start getting pretty messy.

When you go to the bookstore and buy a book, you're getting a device that presents a story to anyone capable of reading the language the book is printed in. Now, this means that you can share the book with friends, donate it to the library, etc. However, it's very difficult to create another copy of the book yourself, so there's never the case where more than one person's using the same book at two different locations.

With software, copying the disk is easy. A feature of computers. And there's nothing wrong with copying the disk. There's something very wrong with giving that disk to others for their use.

However, and here's the part where software publishers get into trouble. What they sell you, what's on the disk, is not the software you bought. It's a system for building the software on your computer. If publishers wanted to force the book model on software, they would come to your home and install the software there.

The installer, which is what you get physically, allows you to install on multiple systems. The purchased item is separate from the used item. And this means that you can use the same installer to create different software on different machines for multiple users. And the EULA can't prevent this. It's just reminding the users that they're not supposed to do that.

What Software Publishers Do

So, say you click past the EULA without reading it (have you ever read a full EULA?). How are you supposed to know what you're supposed to be able to do and what you're not supposed to be able to do? Well there's the obvious rule. If you can do it, you're probably allowed to do it.

Software developers have an enormous amount of flexibility in how they build their software. If they didn't want you to do something, they would just make it hard/impossible for you to do it. Some things they can't prevent: physically copying the media is the big one. And that bugs them, which is why they try to prevent such copying.

But then they pay because the user, who's supposed to be enjoying the software, instead is frustrated because he/she can't do what they want with it. This is tricky. If you're distributing a demo, it may be good that they're frustrated. If they purchased it from you or if your prices are too high then they'll resent you. So we try to disuade the user from doing it by saying "Shame on you for wanting to do that" in the EULA. And we try to pass laws.

Breaking Fair Use

As I said ealier, everyone has the right to copy as part of fair use. But the publishers try to prevent this. Which is a violation of our fair use rights. To the publisher however, it's the same as writing restrictions into the code. It's just a way of making sure the software is used as it should be

Fair Use cannot handle the way software is distributed. It's designed around millenia of trade with physical objects, where part of the value of the thing was in its physical presence and copying was expensive as well.

The DMCA and other such legislation are attempts to restrict fair use in digital media. They hope to use new legislation to change the way people think about it. But this is bass-akwards.

Fair Use arose out of common law understandings of what a sale and purchase is. So any new laws addressing what one can and cannot do with purchased software should reflect the current common law model. Which is the following:

Extensions to Fair Use

The sale of software represents a license as follows.
Holders of the license:

1. Can use the software on as many systems as they use
2. Can share use of the software on their computers with others
3. Can be copy the software for the purposes of back-up or use on personal systems
4. Can resell the license to another person

The following exceptions apply

• The license holder may not sell "the software", only the license
• 1-4 are transferred whole upon sale of the license
• The license holder does not have explicit rights to hack, reverse-engineer, or otherwise fiddle with the software
• The license holder may not in any way portray the software as his/her own work

Obviously, I am not a lawyer, but I think that these extensions to the law would accurately reflect the current common-sense understanding of what is meant by a purchase of software. /blockquote.

An interesting thought.

I was thinking about my comment here and wondering about punishing the people you're selling to, your audience, in the context of T(H)GSB.

About comments. The first thing I read, usually before I read the article, are the comments. They ground the article, point out flaws or highlights of the story. And generally, the community here is wide enough that there are plenty of opinions.

I have access to MSNBC, NYTimes, CNN, Space.Com, etc. I get the Times delivered in the morning and read through it. On most subjects (excluding, for example, Case Mods or Anime) I am already covered. I come to Slashdot not for the links to sites I've already perused, but for the thoughtful and thought provoking comments of the users.

So, the Comment system is not just vital to my Slashdot experience. It is my Slashdot experience.

Now, about Subscription services. It appears that the Subscription service is already in place at Slashdot. I have a little link on my personal page that says "Subscribe" and when I click on it there's a PayPal button. And then there's the ads (which are probably the least intrusive -- and yet still visible -- ads I have ever seen). Still, the level of posting is unaffected and Slashdot still offers the same level of service and the same excellent community. Just with ads now.

The hubub appears to be over nothing. And even now it hasn't settled down. Why? Probably because Slashdot made its users, mostly the die-hards who love Slashdot like a brother, feel like criminals. They feel betrayed, even though nothing seems to have changed. Betrayed how? By suggesting they should pay for Slashdot.

And this is my thesis. On the net there's a collusion between the concepts of punishment and payment. Mainly because of the "service that was once free is now no longer free" effect.

The second factor I think is the DMCA and the bill formerly known as the SSSCA. The term piracy has spilt out over everything free on the internet. Getting things free, reading things for free, saying things for free has been stained; it's pirate. Even if the author's intent is to have them be free.

Telling someone that they should pay for something, telling them that it's valuable, worth money echoes in our minds. It makes the thing seem dirty and that makes us feel used. We feel like we were trapped, lulled, or bamboozled into this newfound "criminality". When we did nothing wrong, in fact, we did what's natural, what the web seems designed to do, shared information.

Slashdot is stained with that same thing. The fear that Slash will become Napster, will convert from something that was open to something that suddenly is closed... That's what's driving the frenzy. It may be irrational, it may be startlingly close to the truth, it doesn't matter.

What is the solution? What should Slashdot do? Slashdot is already doing the right thing, has struck a fine balance between making money and being open. Hopefully that will continue. But the internet community, the world community needs to reject the label of pirate/theft. We need to promote the concept that information wants to be free. That the sharing of ideas, even copyrighted or company-core ideas, enriches everyone.

...

Read the post I linked to above. The point I was trying to make is that no matter how many laws are passed, data will be shared, media will be copied and distributed through this seive that is the internet. But rather than lock down the internet and turn it into a prison, IP holders need to embrace information flow, accept it, not as a loss, but as a natural occurence. Not just thinking of it as free advertising or mind-share, but actually accepting it as we do friction or rainfall or any other thing that affect business.

Blah blah blah.

Sweat

When the people that love and nurture slashdot are chased away by the intrusive ads and the subscription-only services, the good posts and interesting news items will dry up.

Where will I go? How will I wile away the hours of my workday?

I can only make The Onion stretch so far.

I have a journal here. Who knew.