[lit-ideas] Re: Correction [2]
- From: "Peter D. Junger" <junger@xxxxxxxxxxxxxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Tue, 17 Jan 2006 11:59:20 -0500
Robert Paul writes:
: About problems about numbers, Peter Junger wrote;
:
: > These are issues of extreme practical---or, at least,
: > legal---importance since they lie, as far as I can tell, at the heart
: > of the questions of whether computer programs can be patented or
: > copyrighted or both or neither. General purpose binary
: > computers---and Turing machines---distinguish between one of two
: > marks on a magnetic tape or an optical disk or wherever, which marks
: > we can---and often do---interpret as numerals representing the numbers
: > 0 and 1.
:
: I wonder if this is really what computers do? Yes, they may be said to
: distinguish between marks on a tape, etc., but what a computer does
: (I thought) is to do something (or not) as it 'reads' a pattern of
: marks; that the marks parse to numbers in a binary code is irrelevant to
: the computer, which just trots along on/off/etc. That the program is to
: the programmer in numbers matters not to the machine. But this may be a
: side issue or worse yet wrong and a side issue.
I think that is what I was trying to say. It is we, not the computer,
that interprets the marks as numerals and the numerals as people. (By
the way, the word 'reads,' even with scare quotes seems a very
dangerous way of describing what a computer does.
:
: > The question of software patents turns on whether algorithms for
: > processing one ordered set of binary digits into another set of binary
: > digits (the two sets perhaps being the same) can be patented. The
: > Supreme Court has said that they can't be because they are ideas or
: > mental processes; the lower courts have, however, of late been
: > ignoring the Supreme Court.
:
: > The copyright question turns on whether a numerical encoding---usually
: > as binary digits---of a program implementing such an algorithm is
: > an idea, and thus not copyrightable, or the expression of an idea,
: > in which case it is.
:
: Are algorithms copyrightable? The algorithm itself is no more a 'mental
: process' than the recipe for Coca-Cola is a mental process, and if the
: latter is copyrightable (patentable?)
All that is copyrightable is the author's "expression" of an idea, or
whatever. A naked recipe is not copyrightable, although a cookbook
with anecdotes and asides clearly is. (But in the latter case you can
still copy the naked recipe, and use it to cook, say, a seagull,
without infringing on the copyright.) But an additional requirement
for copyright is that the expression be incorporated in a "tangible
medium" such as a paper-back book or a Compact Disk. So that does
raise the question as to what the "expression"--i.e., the text--is.
The issue I was immediately concerned with was the patentability of
algorithms. The Supreme Court seemed to think that algorithms are
like---or are---fundamental laws of nature, which it says are not
patentable. It seems to think of them--and therefore of numbers--as
platonic Ideas. And it also seems to say that algorithms are
like--or are--mental steps because we can implement them just
using our heads (and our fingers and perhaps chalk and a blackboard.)
: I don't see why an algorithm
: couldn't be or shouldn't be, questions about the free exchange of
: information aside.
I happen to think that questions about the free exchange of
information are the critical issues here. Particularly the
free exchange of information about ways of thinking about things.
: I'm surprised to learn that the Supreme Court finds
: any algorithm whatsoever uncopyrightable. I mean: how can Microsoft in
: light of that have a claim on Word, or any other application?
The major issue is the patentability of programs, but there are
also big questions with the copyrightability of programs to the
extent that they lack "expressive" elements. But it is probably
lobbying by Microsoft and its congeners that is responsible for
the Supreme Court's decisions---which were made years and years
ago---being ignored by the lower courts.
: > I think that there is a lot of ontological confusion lurking in these
: > issues. Is a numeral the same sort of thing as a number? Neither
: > is, after all, tangible. Are numbers ideas? Are algorithms
: > ideas?---after all, every algorithm can be assigned a Goedel number.
:
: Numerals are not numbers. 5 and V refer to the same number; they are not
: the same numeral. (A proof.) My hunch is that programmers needn't have a
: definition of number to work with numbers and that they could do what
: they do even if it turned out that numbers were Fregean objects or the
: notes to the music of the spheres.
Programmers don't need the definition of numbers, but the courts may
if they have to characterize what programs are for the purposes of
patent and copyright laws. I suspect, however, that what the
courts will have to do---and that I have extreme difficulty in
doing---is distinguish between things that have mass (including
energy) and things that don't, like information and patterns
and numbers and _texts_.
: I wish that Alito had been asked what
: he thought numbers were. He might have said, 'My earlier view was that
: Plato was right,' and refused, as he did with so many other of his
: replies of that general form, to say what his current view was. Perhaps
: we each mean something different by 'tangible.' A Roman date carved in
: stone is tangible, and its elements are numerals. So with marks on a
: chalk board.
Numerals are tangible or--at least--they are embodied in a tangible
medium. But the numbers that come to mind when we see a numeral as
a numeral aren't tangible. (I suspect that you will agree with that.)
I would define tangible (or, if they are too big, kickable) things as
those that have mass or those that are, according to current
physical theories, subject to conservation laws.
: > Lawyers---even academic lawyers---are not supposed to have to worry
: > about such matters and I am convinced that we don't want judges to
: > worry about them. (Imagine Judge Alito being asked by the Senate,
: > What is a number?")
:
: > So I would greatly appreciate any help that you can give me.
:
: I can give you none, obviously, because if I were actually to help
: anyone I would be admitting that philosophy had some practical value, an
: admission that would violate any number of principles I've sworn to
: uphold, e.g. Morgenthau's extension of the Auden Rule, not to mention
: the bylaws of the APA.
I find your responses very helpful, if only because they help me realize
how muddled my thoughts are about such matters. (By the way, do you
know what a "thought" is?) Your final remarks about philosophy remind
me of the Cambridge toast: "To the higher mathematics, may they never be
of use to anyone." The trouble is that they turn out to be useful and
that people now want to patent them because they are useful.
Than you.
--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
EMAIL: junger@xxxxxxxxxxxxxxxxxxxx URL: http://samsara.law.cwru.edu
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