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From: Arthur Smith <apsmith@aps.org>
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I sent the following to Bruce Sterling after reading some of his
Viridian ideas (http://www.bespoke.org/viridian/). I haven't really
heard back from him yet, but it seemed relevant to this list too, now
that I've discovered it. The OPL (if it works as I think it should) may
be another major step in moving us to a new concept of information
sharing, as opposed to the information hoarding that surrounds the very
term "intellectual property". It's essentially the same issues and the
same problems whether you're talking about open source, self-published
MP3's, Sterling's open design ideas, or anything that flies against the
way patent and copyright concepts have been misused in the last decades
of the 20th century.

Anyway, I hope this fits in here  - openpatents.org sure seems like an
idea whose time has come,

		Arthur Smith (apsmith@aps.org)

-------- Original Message --------
Subject: Free and Open creativity
Date: Sat, 8 Jan 2000 01:34:05 -0500 (EST)
From: "Arthur P. Smith" <apsmith@aps.org>
To: bruces@well.com

I'm intrigued by your manifesto, in particular calling for designers
and artists to stop thinking of their creations as property and start
sharing them. I know this concept owes much to the open source software
successes, but something very like this I think really derives from the
way science is, or should be, done - the concept of sharing new ideas
and discoveries to let everybody benefit, and to let others quickly
build
on (or falsify) your work is one of the reasons science has progressed
so amazingly far in this century, leading to many of our new
technologies
in the process.

Since I work for a major scientific publisher we've been grappling with
this concept of treating what we publish as intellectual property which
we, the authors, and the whole community also feel should somehow be
freely
available and not locked up in the ways that "property" seems to want to
be.
A number of proposals have been made - the most forceful perhaps
by Stevan Harnad (http://cogsci.soton.ac.uk/~harnad/) who thinks authors
of scientific articles should either pay to have their work refereed and
distributed by publishers (not to be confused with a vanity press which
it
so closely resembles...) or such things should be funded by grants, in
any
case making the literature freely available to readers. We've so far
settled
on a medium where we allow, even encourage, physicists to self-publish
their
work as they format it themselves (particularly on the Los Alamos
E-Print
Archive at http://www.arxiv.org/), and then we run through the editorial
process here to refine things and spiff up the papers a bit and
republish
something that subscribers pay to get access to. At least that's the
model
we'll be in for a few more years - we do have one experimental journal
running
in the Harnad model. In any case, scientists have almost never been
directly
paid for their work of creation or discovery, instead receiving payment
in recognition at least within their academic department. Except of
course
for patents.

And thinking about patents seems to bring a possible broader scope to
the
concepts suggested by your manifesto. Now that we have these wonderful
new media for communication, wouldn't it make sense to replace the
patent
system with something that still rewards the creator for a creation,
still
rewards the inventor for an invention, but doesn't leave that
intellectual
entity as a piece of property which cannot be used by others without
surmounting a barrier of fees and licenses? At least patents, unlike
copyrights, are of relatively brief duration, after which the concepts
become
public knowledge; but if we recognize the creator from the start,
wouldn't we be likely to see publication of great new designs and
processes
in, say, a few months after their creation, rather than the 20 years it
takes a patent to expire (not to mention the 3-10 initial years of
secrecy
before the application is approved).

Reducing the cycle time for great ideas to build on one another, making
these great ideas publicly available to the 2 or so billion inhabitants
of this planet who could possibly do something with them - wouldn't
that lead to an explosion of creativity and technology development in
resolution of innumerable problems we have here?
The global warming issue you have focused on is one demonstration -
clearly we have a huge range of technologies that could help in one way
or another, but we need them to be working now, not 10 or 20 or 30
years from now. Space development is another - there are a lot of
suggestions of technologies to get us into space for a tiny fraction of
the cost NASA expends now - an open approach to the technology
development and design could get us affordable space transportation for
the masses in a much shorter time.

There are clearly a lot of unknowns in this. Where does the money come
from
to support these inventors and designers who are donating their
creations?
One way is to create a foundation that awards money based on the
usefulness of
contributions, supported in turn by the consumer level (manufacturing or
service) industries that make use of these ideas. A lot more detail than
this
is needed - but I think it could possibly lead to a whole new economic
paradigm: in addition to the manufacturing and service sectors, we have
a "creative" sector that is at least partly funded through a (surely
voluntary)
tax on the first two. Perhaps we are heading that way anyway? Sort of a
meta-economy on top of the real one? Eventually as artifical
intelligence
kicks in, perhaps the meta-economy will be the only one where humans
actually
do any work? But that's a way down the line.

I think it's a  wonderfully exciting time we live in, but I would be
deeply
disappointed if the great new communication tools we've been given
become
a mass of barriers and toll-booths, wasting creativity through needless
duplication and lack of communication. I think between artists and
designers, scientists and engineers we may have the makings of a truly
new order in the world - there seem to be many separate threads along
these
lines - perhaps they will converge?

Anyway, thanks for listening...

		Arthur

------------------------------------------------------------
Arthur P. Smith                       Research & Development
The American Physical Society                   
1 Research Rd. Box 9000              e-mail: apsmith@aps.org
Ridge, NY 11961-9000                     phone: 516-591-4072

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Date: Wed, 19 Jan 2000 23:24:39 -0500
From: Mark Shewmaker <mark@primefactor.com>
To: opl-discuss@openpatents.org
Subject: Re: Open patents and intellectual property
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On Fri, Jan 14, 2000 at 03:21:00PM -0500, Arthur Smith wrote:
> I sent the following to Bruce Sterling after reading some of his
> Viridian ideas (http://www.bespoke.org/viridian/). I haven't really
> heard back from him yet, but it seemed relevant to this list too, now
> that I've discovered it.

It seems most relevant.  Thanks for forwarding it here.

> The OPL (if it works as I think it should) may
> be another major step in moving us to a new concept of information
> sharing, as opposed to the information hoarding that surrounds the very
> term "intellectual property".

I would like the OPL to be able to do just that, only focused on the
issue as it relates to patent and patent-like intellectual properties.
(There are already other groups that are doing a fantastic job of
addressing the issue from copyright, writing-code, writing-documentation
and writing-systems viewpoints.  I just want to address the issue from
the point of view of patents and things that effectively act like
patents.)

However, one of my more long-term goals is in fact to implement
alternate methods of promoting discovery and invention, (and in which
the discoveries and inventions are licensed under the OPL instead of
merely being known of but inaccessible).  Removing restrictions on
sharing IP will help things a lot in and of itself, but the real gains
will come in implementing a system designed to function best in such an
environment, (such that people are rewarded for creating accessible
solutions as opposed to creating combination solutions/roadblocks.)

However, the former has to be done before the latter can be implemented,
so the more short to medium term problem is to debug and promote the OPL
in order to provide way out of the trap that I think people generally
get stuck as relates to patents.

I think people and organizations tend to get stuck in a type of
game-theory trap when thinking of how to manage their patents and
patent-like IP.  Most players see value in restricting the rights to use
these IPs, but I think their judgments are based on distorted
information:  The costs and benefits of the two types of strategies,
(restriction versus dissemination), are not as clear as they could be;
important information is missing or distorted, and that biases the
players' judgment toward restricting use.

There is no way to see the true costs of patent restrictions when
everyone is forced to participate under these same system of rule that,
by design, rewards restriction.  If players could opt out of that
system, they would be able to objectively determine whether
participation is beneficial to them.  Without a perfect and globally
available method of opting out, the true overall costs of restricting
discovered information and invented techniques and solutions remain
hidden, and the benefits of wide dissemination of the same remain
unclear.  To be fair, an opt-out system should also show the costs of
opting out.  If there are inventions and discoveries that would not have
occurred were the relevant intellectual property not in force, then
those things should not be accessible to participants when opting out.

It's not possible to create this perfect, globally-accessible method
of opting out of the system without legislative changes.  However,
it should be possible to put together a limited opt-out system
through voluntary agreements that can effectively get us most of
the way to a global opt-out system; I want the OPL to do just that.

Speaking in broad terms, under the OPL you agree to abandon your
patent and patent-like monopoly powers over all who also do so
to the same or greater extent.  You can enter the system gradually,
through any of 7 Options; you needn't "abandon" all your applicable
intellectual property at once.

The OPL is designed to make it safe to share your IP; no one should be
able to take advantage of your generosity.  If someone uses the OPL to
make or distribute a product incorporating your IP, then assuming you've
agreed to a high-enough Option of the OPL, you'll have just as much of a
right to make a similar product as this other person does, even if the
product incorporates 200 OPL'd patents from 30 different companies.  You
may need to rewrite code if the product incorporates proprietary
software, but you're not prevented from writing a competing version.

The fact that some IP restrictions have been lifted is of course not
guarantee of success.  The basic rules of economics still apply:
You still need solid funding, good employees, efficient manufacturing,
good management, etc.  The only difference is that some restrictions
on creativity will have been lifted.

Those IP restrictions are only removed under "opt-out" conditions.  The
OPL will generally not apply if you incorporate non-OPL'ed patents into
it.  You have just opted back into the system in a very localized way,
just for this product, and you will have to negotiate patent licensing
agreements with the owners of all patents that are incorporated in this
product.

(Note:  The OPL only addresses the licensing of patents and IP that
restricts similarly to patents by attempting to prevent
re-implementations.  Restrictions on the look and feel of a user
interface, (whether based on patent, copyright, or trade dress
restrictions), restrictions on reading and learning from material made
available to you, (better known as reverse-engineering restrictions),
are examples of what I'm terming patent-like restrictions.  The decision
to disseminate or restrict the flow of information is of course a larger
issue than just patents, but there is no need to address the broader
issue here.  The OPL can address the issue from a patent and patent-like
IP standpoint; other folks are already doing a marvelous job at
addressing other parts of the issue.)

That was a bit of a rant there, but the main idea is that yes, I do want
to make sure people can use the OPL to go from a system that rewards
restriction information the rights to use it to a system that rewards
dissemination of information and the right to use it.

> It's essentially the same issues and the
> same problems whether you're talking about open source, self-published
> MP3's, Sterling's open design ideas, or anything that flies against the
> way patent and copyright concepts have been misused in the last decades
> of the 20th century.

I agree.

One thing I want to make sure of is that the scope of the OPL is well
matched to the goal of providing a way out of the trap patent-like IP
restrictions cause.  (Making sure the problem in general is addressed,
as opposed to just the most well-known specific implementation of the
problem.)  But as to the scope of the OPL:

1.  It should address IP that acts similarly to patents.
2.  It shouldn't address things that are best address elsewhere.  (Such
    as non-patent-like IP issues.)
3.  It should be compatible with other similar but non-patent-related
    efforts, (such as Open Source code), so it needs to address them
    to at least that extent.
4.  It should be able to address patent issues as they relate to
    different industries, or be able to be extended to do so.

> Anyway, I hope this fits in here

I think it does.

Although I responded to a number of your points already in my rant
above, I do want to respond to a couple things in your forwarded mail
in context:

> -------- Original Message --------
> Subject: Free and Open creativity
> Date: Sat, 8 Jan 2000 01:34:05 -0500 (EST)
> From: "Arthur P. Smith" <apsmith@aps.org>
> To: bruces@well.com
> 
> I'm intrigued by your manifesto, in particular calling for designers
> and artists to stop thinking of their creations as property and start
> sharing them. I know this concept owes much to the open source software
> successes, but something very like this I think really derives from the
> way science is, or should be, done - the concept of sharing new ideas
> and discoveries to let everybody benefit, and to let others quickly
> build
> on (or falsify) your work is one of the reasons science has progressed
> so amazingly far in this century, leading to many of our new
> technologies
> in the process.

The basic idea of sharing inherent in the scientific method is at odds
with the notion of restricting the use of ideas inherent in patents.
Rather than having a (patent) system that attempts to promote progress
based on a granted ability to restrict ideas, we should have a system
that promotes progress by settign things up so that people tend to
benefit from sharing their ideas, inventions, and discoveries.  (I feel
that I'm hardly doing more than rewording what you say later on.)

> Since I work for a major scientific publisher we've been grappling with
> this concept of treating what we publish as intellectual property which
> we, the authors, and the whole community also feel should somehow be
> freely
> available and not locked up in the ways that "property" seems to want to
> be.

Information almost might as well not have been discovered if it's merely
locked up.

> And thinking about patents seems to bring a possible broader scope to
> the
> concepts suggested by your manifesto. Now that we have these wonderful
> new media for communication, wouldn't it make sense to replace the
> patent
> system with something that still rewards the creator for a creation,
> still
> rewards the inventor for an invention, but doesn't leave that
> intellectual
> entity as a piece of property which cannot be used by others without
> surmounting a barrier of fees and licenses?

[...]

> There are clearly a lot of unknowns in this. Where does the money come
> from
> to support these inventors and designers who are donating their
> creations?
> One way is to create a foundation that awards money based on the
> usefulness of
> contributions, supported in turn by the consumer level (manufacturing or
> service) industries that make use of these ideas. A lot more detail than
> this
> is needed - but I think it could possibly lead to a whole new economic
> paradigm: in addition to the manufacturing and service sectors, we have
> a "creative" sector that is at least partly funded through a (surely
> voluntary)
> tax on the first two.

Or financial derivatives:

2.  What if you could agree to pay anyone who provided a solution to a
    certain problem?
1.  What if you could also wager on whether anyone would in fact be able
    to provide such a solution under a certain price by a certain time, 
    (essentially doing stock-market type transactions on scientific and
    engineering questions?)
3.  What if you could place market and limit orders on (2), or
    trade futures in same?
4.  Given that the above helps quantify the risk of an individual
    investment, and that over a group of possible investments the
    aggregate risk could be known to a greater degree, that leads
    to the possibility of insuring against, (or for), technological
    improvements.

The above would imply that you could potentially insure that
technological improvements would lower your costs of having some process
done by, say 20% within 1 year.  You could go to an insurance company
and agree to pay them 5 of those 20 percentage points for them to insure
you against the possibility of the technological improvement *not*
happening.

If it does happen, you're out that 5%.  If it doesn't, they pay
that 20% for however long you agreed.  (The details don't matter;
I'm being sloppy with the wording of percentages anyway.)

The interesting thing is that if in this market so-called insider
trading is allowed, then the insurer would have major incentives to
purchase stock in solving the problem.  If they can effectively pay to
have the problem solved, (even if it's indirect or distributed, and even
if all they end up paying for is for someone else to point out to them
that the problem was solved ten years before), then they'll make money
on the deal, the information will be public, and the manufacturer will
have had more predictable expenses, as well as a greater likelihood of
having access to any other improvements went hand-in-hand with the one
that came about.

I think that's a much better way of promoting invention and discovery
than granting people monopoly rights.

(And I think it would be amazingly cool to have insurance companies
and stock brokers to be funding research and development.)

Here are two folks who talk about these sorts of ideas:

     Robin Hanson's Idea Futures, discussed at
     http://hanson.gmu.edu/ideafutures.html

     Marc Stiegler's Castpoints discussed in his book _Earthweb_, see
     http://www.skyhunter.com/earthweb/

 -Mark Shewmaker
  mark@primefactor.com

From owner-opl-discuss@openpatents.org  Wed Jan 26 11:34:16 2000
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Date: Wed, 26 Jan 2000 11:34:15 -0500
From: Mark Shewmaker <mark@primefactor.com>
To: opl-discuss@openpatents.org
Subject: Renumbered Options and Pools
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I've renumbered the Options and Pools of the OPL to (I think) become
a bit less confusing:  I moved the Open Source Option and Pool from
1 to 6, shifted the existing 2-6 down to 1-5, and then renamed the
new 6 to "F".  I also broke out the one table describing the
relationships between the Options and Pools into three separate tables.

Does anyone has any comments on this slight reorg and renaming?
I think this is a simpler and easier-to-understand way of putting
things together, but I'd be oblivious to any remaining and 
solvable confusing wordings.

The direct line is http://www.openpatents.org/license/versions/opl.php .
The old-format table (with the new numbering scheme) is still in the
middle of the current version of the license, and it's followed by
the three newer tables.  Any suggestions?

 -Mark Shewmaker
  mark@primefactor.com

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Date: 30 Jan 00 09:19:20 Asia/Tel_Aviv
From: jamil khatib <jamilkhatib@netscape.net>
To: opl-discuss@openpatents.org
Subject: OpenPatent & OpenIPCore
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Hi,

I am very intrested in the idea of OpenPatent License for OpenIPCore
project.
In the openipcore project we are trying to define a protection scheme
for openhardware designs. we have several suggestions about this kind of
protection "visit te license page at our site http://www.openip.org/oc".
I'd like to know how can we use the openPatent as one of hte protction
schemes to hardware.
Thanks


pls: replay to khatib@ieee.org

Thanks
Jamil Khatib
OpenIP Organization http:/www.openip.org
OpenIPCore Project  http://www.openip.org/oc
OpenCores  Project  http://www.opencores.org

____________________________________________________________________
Get your own FREE, personal Netscape WebMail account today at http://webmail.netscape.com.

From owner-opl-discuss@openpatents.org  Mon Jan 31 03:22:49 2000
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Date: Mon, 31 Jan 2000 03:22:42 -0500
From: Mark Shewmaker <mark@primefactor.com>
To: khatib@ieee.org
Cc: opl-discuss@openpatents.org
Subject: Re: OpenPatent & OpenIPCore
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On Fri, Mar 07, 2036 at 03:47:36PM +0000, jamil khatib wrote:
> Hi,
> 
> I am very intrested in the idea of OpenPatent License for OpenIPCore
> project.
> In the openipcore project we are trying to define a protection scheme
> for openhardware designs. we have several suggestions about this kind of
> protection "visit te license page at our site http://www.openip.org/oc".
> I'd like to know how can we use the openPatent as one of hte protction
> schemes to hardware.

Well, it's still in development, so the most important thing is to make
sure the license can be adapted to meet your needs while it's still in
alpha, assuming that our goals end up to be as compatible as they seem.

Above all, I think it's very important to prevent gratuitous
proliferation of GPL'ish patent-cross-licensing agreements.  It would
wasteful and possibly harmful to all of us.

We're already inconvenienced by the proliferation of Open Source
licenses.  There can be and are good reason to have different Open
Source licenses, some are business reasons and some are ethical reasons.
However, we're still left with a maze of incompatibilities.

I don't want a similar maze of incompatibilities to show up in
patent-land.  It would be much worse with patents, because while for
copyrights authors could theoretically all use different licenses and
work out the maze of incompatibilities between them all, for patents all
the software authors would also have to persuade the same patent-holders
to license their patent(s), over and over, for every single license,
probably with less and less success as time went on, which is the main
reason why I think having multiple similar patent licenses could be much
more destructive than having a proliferation of Open Source licenses.

(Although the Open Source copyright licenses do tend to have small
references to patent rights that have worked pretty well so far, they
haven't required any of this explicit licensing of individual patent
numbers, so the problem above hasn't shown up.  I would expect it to be
a problem if multiple similar patent licenses proliferate, though.)

So I would really hope we could consolidate the patent issues into one
license that could be referenced as needed.  Referring to this one
patent license would also make it possible for you to simplify your
license by uncoupling it from the patent issues, and nobody has to
duplicate work, whether it's writing and promoting the license, or
persuading patent holders to agree to the twelfth license of the same
type in a row.

With that notion, (and some other strategic notions) in mind, I tried to
make the OPL so it could be a one-size-fits-all license.  People can
submit patents under the license such that they can be used in different
circumstances.  I tried to set up the Options and Pools to maximize the
number of conceivable and compatible groups that could benefit.

One compatibility problem I see from the Open Hardware and OpenIPCore
points of view is that the OPL is currently a GPL-ish license, not an
LGPL-ish one.  I have to admit that I had a hard time really wrapping my
mind around the concepts currently in the license.  I thought I had
everything clear in my head, but when it got to writing things down, I
had to change the Options and Pools around a good bit before everything
fit.  I've held off adding LGPL'ish parts to the license so that the
GPL-ish parts can be nailed down.  Then, if it makes sense and is still
necessary, the LGPL-ish parts can be added in.  I'm coming more and more
to think that a GPL-ish-only license will do, because over time more of
the things I thought would require LGPL-ish additions seem more and more
to be doable with (a better edited and legally debugged version of) the
current license.  So, even though both you and the openppc group will
probably need to have lgpl-ish options of the license, I wonder if we
could nail down the gpl-ish parts first, and then see what's left that
needs to be specified.

One snag:  The license is geared toward making a distinction between
hardware and software.  I haven't fully wrapped my mind around what that
distinction should mean in reference to, say, a vhdl design containing
only OPL-licensed IP together with things the OPL doesn't cover, but
housed in something that is covered by a non-OPL patent.

What I think should happen, (and again I haven't thought all this
through really), is that if the vhdl design is considered Open Source,
that it should be considered software just as much as a handheld
device's EPROM code stored in a patented device would be considered
software, and thus the rules of Pool F (the Free Software/Open Source
Pool) of the OPL would apply.

The problem then is on what happens if a proprietary vhdl library is
included?  That would seem to mean the work-as-a-whole isn't Open Source
anymore, so this would have to be considered a proprietary software
work.  But should closed source vhdl designs still be considered
software?

In a way it almost seems like a trade secret.  Copyright is supposed to
allow you to look at the thing in question even though there are limits
on redistribution.  Is there an equivalent of a disassembler for
closed-source vhdl, where given a chip you can fair-use critique what's
there just as much as you could do with a movie or with disassembled
proprietary code?

Even so, I'm still strongly leaning towards the look-at-it-like-software
side both for Open Source and non Open Source cases, such that I would
want to eventually bring it up with patent attorney(s) that would go
over the license.  If you have any comments or pointers to information
on why it should be looked at that way from the point of view of the
OPL, please post them.  (Maybe the PLIP requirement should say that you
have to have access to the "compiled" (?) vhdl results.)

Anyway, are there things the OpenIP groups would need that are not
currently addressed, or that could be better addressed?  I'm interested
in any general or specific deficiencies you might see in the license.

I'd be delighted if you could find the OPL useful.  Please let
me know what I can do to help.

 -Mark Shewmaker
  mark@primefactor.com

