Torvalds weighs in on Linux trademark row

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Patents, Copyrights, and Trademarks are not even comparable

People like to lump those three things into one big category called "Intellectual Property Rights", but in fact they are totally different things with totally different purposes.

Patents are used to encourage innovation amongst inventors. The arguement against patents in software is that software in its purest form is a mathematical algorithm, and that you should no more have a right to patent an algorithm that allows for one click web purchases than you have a right to patent e=mc^2. Patenting an algorithm, in effect, stiffles innovation because unlike a patented machine or industrial process, limiting access to newly discovered mathematical algorithms also limits the scientific community's access to the algorithm, thus preventing improvement upon it. And the speed of innovation in computer software goes much faster than in the industrial world, so the longer time limits for a normal patent far exceed the usefulness of the algorithm being patented. Plus, the way the system works is that the first person to point out an algorithm, not the first person to have used it, gets the patent. So you can come up with an almost insignificant algorithm and never come up with a useful application yourself, but charge royalties
to all who do. With machine patents, it would be almost impossible to do that and actually make money.

Copyrights are used to protect authored bodies of works. A software program is an authored body of work and thus falls under copyright protection. No true F/OSS will ever argue against copyright protection or promote copyright abuse. Now you do have the FSF promoting its "copyleft" copyright scheme, but in essense it is still a form of copyright.

Trademarks have nothing to do with science or math or authored work. It has everything to do with pure advertisement. Those same F/OSS people who defend copyright protection will also defend trademark protection, simply because neither one stands in the way of scientific research. Now some will argue against "proprietary" forms of copyright licenses because that does restrict their personal use of software, but rather than fight that in court (because that would mean attacking the same copyright laws that protect their own work) they simply avoid proprietary software. But trademarks have zero effect on their personal use of the code, it only affects what they get to call it in public.

That's kind of why I wasn't overly interested in the trademark case againse Lindows. True, the Windows trademark should probably have never been given to MS in the first place since it was a generic term before MS tried to trademark it. But it did not, and could never have, prevented the Lindows software itself from being distributed. All MS could do was make them change their name.

And by the way, even though F/OSS folk are against "proprietary" copyright licenses and are against software patents, all you'll find them doing is speaking out against them. You won't see them violating them, at least not intentionally, and when it is done unintentionally and it's brought to their attention they fix the problem. Those that do violate them are pirates mascarading as open source advocates.

Posted by: Michael Kelly   Posted on: 08/22/05 You are currently: a Guest | Members login | Terms of Use

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