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The Silencing of Maya (niederfamily.blogspot.be)
774 points by kngl 674 days ago | comments


jaysonelliot 673 days ago | link

The biggest culprit here, in my view, isn't Apple, PRC, or the patent system.

It's the death of physical media and the rise of the "app store" model.

I have programs for my Apple //e computer that are over 30 years old. Most of the companies that made the software have long since disappeared, and the computer hasn't been supported since the '80s, but I can still use them.

That software is my property. I own it, and I can use it for as long as the disks hold out.

By contrast, the software on my iPad isn't really mine, in any practical sense. I'm licensing it, and it can be taken away, or I can be forced into "updates" that may change it in ways I don't want. Sure, I can avoid updating my apps, keep the iPad offline, and only use apps that run 100% locally, but that's an impractical solution, at best.

Consumers are becoming trained to think of their devices as barely more than hermetically sealed dumb terminals (although they wouldn't use that phrase). The notion of "owning" things by paying for them is fading. "Cloud" apps that are free or subscription-based, music and movies that you stream rather than buy, the books on your Kindle, even the seeds that farmers buy from Monsanto aren't theirs to own and use as they please.

Steven Hawking famously continued using the same 1980s-era speech synthesizer for decades because he felt the voice was part of his identity. The company that made it went out of business, but he didn't lose his voice. He could have gone for constant updates, a new and "better" voice every year, but he chose not to. Because he owned his speech synthesizer, it was his choice to make.

There is a lot of obvious benefit to the app store model, from convenience to cost savings to ease of use. There are also many cases where it's vitally important that people own their software and their data. I don't know if it means we need more options for physical media and manual installs, or legislation protecting people's purchases from unwanted updates and removals, or something else, but I see this as a problem that's not limited to just this one situation.

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omegaworks 673 days ago | link

Are we really blaming the technology here? You're neglecting the reality: that a person--a living, breathing, thinking person--is behind the switch or lever that eliminates access.

Connected computing is the inevitable future. We will always hold less physical computing capability in our hands then can be beamed to us from afar on-demand.

What is ridiculous is the systems--the people systems--we have built that fostered this ethical failure. The social system of law that constrains Apple's behaviors. The internal social system at Apple whose 'conservative' default behavior is to remove rather then remit. There's a dude at Apple whose fear for losing his job overrides any sense of disgust he may have felt doing this.

The technology is not at fault. Our contemporary framework for regulating that technology--our society's response to that technology--is at fault.

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gaius 673 days ago | link

a living, breathing, thinking person--is behind the switch or lever that eliminates access.

A living, breathing, thinking person also did the research that this technology is based on, possibly risking their own capital (livelihood) to do so. Are they not entitled to earn anything? Should all researchers be starving artists in garrets?

Be careful what you ask for, because you might get it.

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jopt 673 days ago | link

Nobody is entitled to earn anything. Perhaps your great idea can't make money without a special legal monopoly, but that is not in itself a reason for the legal monopoly to exist. Being creative is not a license to get rich off your ideas.

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paulhauggis 673 days ago | link

I wonder what all of the pro-union people here on HN have to say about this. Unions are, in essence, a special monopoly in certain industries that entitles people to a certain wage.

In some industries (like the auto industry), a job that normally should pay a little above minimum wage is inflated to many more times this.

"Being creative is not a license to get rich off your ideas."

When copyrights and patents are finally gone, I hope I have money. Why? I will have the resources to cherry pick up-and-coming inventors that don't have the same resources as I do.

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HolyHaddock 673 days ago | link

> Are they not entitled to earn anything? Should all researchers be starving artists in garrets?

Do you mean the creators of SfY, who seem to claim to have done at least some of the research that went into it themselves, or do you discount their effort and risk merely because another company accused them of infringing a software patent?

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jkn 673 days ago | link

It is a bit easy on Apple to blame not them but the "app store" model they created for their devices and control completely. Apple has been a leader in this industry shift.

Also it is not a question of physical media vs. downloaded software. Even physical media software now routinely call home to check for a valid license. So I suppose it is indeed legislation that we need, to prevent companies from revoking licenses.

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gbog 673 days ago | link

That is a weak workaround. There real solution is to fully recognize that information is power, and to have a separation of powers similar to the three powers of Montesquieu's.

Hardware companies should no be allowed to make or sell or control software.

Software companies should not be allowed to produce, sell or control hardware.

The same way we, user, citizen, forbade our physicians to sell us the drug they prescribe, we should forbid information processing companies to sell us the devices where this information is processed on.

I'm looking at you, Google, Apple and contenders. Everyone belived 1984 was targeted at totalitarian government, but maybe the dark prophecy is being fulfilled under our eyes.

If I were a good pamphletist, I would write a punchy call for arms on the topic.

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adrianN 673 days ago | link

Where does hardware end where does software start? Is the code in your BIOS still hardware? How about the driver for your graphics card? Is it still hardware if the processor only executes code signed by its manufacturer?

Forbidding hardware companies like Apple to sell software is not sufficient to prevent them from only running things they approve. And besides, a law like that would likely cripple a large part of the industry and stifle innovation.

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gbog 673 days ago | link

I am sure there have been many objections against separation of executive, legislative and judiciary powers, also in the name of efficiency.

> a law like that

I don't see it as a law. I think it should be to the constitutional level. Laws, if necessary, would get into details on how to enforce the constitution, and these details may vary with place and time.

> would likely cripple a large part of the industry and stifle innovation

On the opposite, I think it would in long term be better enforced by such a separation of (information) powers. One of the reason could be that it would require open formats for any communication between hardware and software. Then any other company could compete in the field, and innovate in directions either not allowed or not deemed interesting by the bigger companies.

> not sufficient to prevent [Apple] from only running things they approve

I do not think Apple or any other hardware provider is the least entitled to prevent me, the owner of the device I bought, from using any software I like. In my mind, current users of these devices when not unlocked do not own them, they rent them really, and should be aware of this.

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RichardButler 673 days ago | link

Apple wouldn't exist if a Montesquieu like separation of powers had been applied to the industry. Apple has always had seamless control of their product, it's what differentiates and makes them successful as a company.

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jopt 673 days ago | link

Apple aren't legally preventing you from running anything. If you're clever enough to do it, go nuts. If you think they're making it too hard, tough luck. Their products aren't built to spec; you're not entitled to a product that works any differently than the one they sold you.

If you buy a microwave and you want to run custom software on it, that is your problem, not the microwave manufacturers.

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nathan_long 673 days ago | link

>> you're not entitled to a product that works any differently than the one they sold you.

Right, because you knew what you were buying. However:

>> Apple aren't legally preventing you from running anything.

They tried to, though.

>> Apple's request to define copyright law to include jailbreaking as a violation was denied as part of the 2009 DMCA rulemaking. - http://en.wikipedia.org/wiki/IOS_jailbreaking#United_States_...

There's a big difference between "we're not going to help you do X with your purchased item" and "we legally forbid doing X with your purchased item."

The only thing keeping companies like Apple from doing this is our insistence that they don't.

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LinXitoW 673 days ago | link

I take it you're fine with UEFI Secure Boot, then?

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jopt 671 days ago | link

I don't consider it my right to have Microsoft produce anything else for me.

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rmc 673 days ago | link

I would write a punchy call for arms on the topic.

The Free Software/Open Source community has been banging this drum for years. Come join us and let us all make the world better.

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rimantas 673 days ago | link

You mean, worse?

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artmageddon 673 days ago | link

How would you argue that? Genuinely curious.

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rimantas 673 days ago | link

Can you tell me the case where separating hardware from software created superior product? Anyway, I am too tired to argue with FOSS extremists touting their imaginary world with imaginary benefits and solutions for imaginary threats for imaginary users. "Users" ir the key word there. Majority of the people using software are just users, not programmers. We are not all butchers, bakers, and car mechanics. We don't have problems some imagine we have.

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Karunamon 673 days ago | link

>imaginary world with imaginary benefits and solutions for imaginary threats

Do be careful. RMS's "imaginations" have come true more than once. It's often that you don't know what you have until it's gone...

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kamaal 672 days ago | link

I think this sort of thing must be open source.

I am ready to contribute to such a project if it already exists.

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rimantas 672 days ago | link

They never came true. They never will. But of course, with some goalpost shifting you can argue that. Anyway, RMS "imaginations" have nothing to do with the world as it is today.

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jeremyarussell 673 days ago | link

He thought you meant that open source makes the world worse.

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ktizo 673 days ago | link

Can you tell me the case where separating hardware from software created superior product?

Computers.

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anthonyb 667 days ago | link

Specifically, the IBM PC.

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jopt 673 days ago | link

Separation of power, like Democracy and other such ideas, don't necessarily belong in every system. Politics/government is not an optional system; everyone has to take part (whether they want to or not.)

Consumer technology is not enforced by police and armies, and should be free from the demands we may rightly have on our state.

Besides, how would you like to buy a hardware-only car? What about a fridge or a plane without the code that makes it work? The hardware/software dichotomy is only an abstraction---the instruction set of a processor is software, but the hardware must be designed around it.

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cabalamat 673 days ago | link

> Politics/government is not an optional system; everyone has to take part (whether they want to or not.) Consumer technology is not enforced by police and armies, and should be free from the demands we may rightly have on our state.

In the information age, if you want to live a full life, then consumer technology is no more optional than government and politics.

This is not to say that there should be a strict separation of hardware and software. But it is an interesting idea.

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jopt 671 days ago | link

It is very much more optional. Government and politics have a monopoly on the legitimate use of force.

Note that I'm not referring to consumer technology as a whole; I'm saying no specific consumer technology is forced upon you. While it's hard to avoid the idea of it, I don't have to buy an iPad if I don't like it. I do have to pay property tax.

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gbog 673 days ago | link

I think information is power mostly because you do not have the choice. Only few exceptions can live a life with no relation to information processing machines.

However I would agree that the limit between hardware and software is yet to be defined, maybe using new names. I guess it was the same when defining political power separation.

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Daniel_Newby 673 days ago | link

> Hardware companies should no be allowed to make or sell or control software.

So if I, as an electrical engineer, design an implantable pacemaker for people with heart problems, they have to visit Joe's Software Shack and Live Bait to make it work?

This is just silly.

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gbog 673 days ago | link

If your "implantable pacemaker" records a bunch of vital information about my heart for years, then it is not a simple "implantable pacemaker", it is an information processing device, and the sensitive information it produce and store is my own, and allowing you full control on it is a danger of potential alienation that must be mitigated.

As we do not currently have a better way[1] to ensure there will be no misuse of the power brought to you by controlling the way this information is generated, processed and stored, I would much prefer this heavy responsibility to be split between three different providers (information producer, processor, storage) communicating together according to open formats.

If your pacemaker is a piece of hardware with no sensitive information stored and not connected to the outside world, then I would not consider its "software driver" to be an information processing system (ie "real" software), and there would be no need to split responsibilities in this case. This should also answer to the "micro-wave" objections in other answers. And yes, I change the definition of "software" a little bit, so it do not include single-minded commodities drivers.

Actually, "software" is too wide on one side, and too narrow on another. A big company like Google should be understood as a software company. For me, they do not cross the line if they build their own servers for internal usage. They do cross the line, however, when they buy Motorola. The gray area would be the Nexus line and Chromebooks, which is ok to me if these products can be considered as real-life experiment for new software concepts, but not ok if they become mainstream products sold by the million of unit and if Google installs itself in a long term hardware producing activity, in parallel with its enormous presence as the software gorilla.

[1] In the same sense that "democracy is the worst regime, except for all other"

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rimantas 673 days ago | link

It is not just silly, it's the most stupid suggestion of the year. If you are happy to use half-working, half-baked products, feel free. I will choose those, where software is finely tuned to the hardware and this combination makes pleasurable experience.

"If you are serious about software you should make your own hardware" © Alan Kay.

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gbog 673 days ago | link

This is the problem, many people choose short term pleasure against long term safety. I hope for you that you do not apply the same reasoning when you choose between cook at home and fast food.

Or maybe you'd deny obesity is a problem?

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batista 672 days ago | link

>* That is a weak workaround. There real solution is to fully recognize that information is power, and to have a separation of powers similar to the three powers of Montesquieu's. Hardware companies should no be allowed to make or sell or control software. Software companies should not be allowed to produce, sell or control hardware*

One problem is that if that weren't allowed, we'd probably never have the app in the first place...

The app was made for THAT platform, for THAT store and for THAT hardware product.

Now, one can assume but we would have gotten something like the iPhone eventually anyway, but if you see what the hardware-first companies were shipping at the time of the iPhone's launch, that might have taken 5-10 more years.

I don't mean it could only happen by Apple: just that it could only happen by a process of building things where hardware+software are given equal importance, and ONE entity calls the shots for both.

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primitur 673 days ago | link

>Apple has been a leader in this industry shift.

Actually, Apple has been a follower.

Ubuntu and the Linux world in general has had app-stores long before Apple came to the party.

The Apple app-store is nothing more than a Sony'fied software repository.

Where Apple have succeeded while "The Linux scene" has floundered is, Apple have put the app-store, physically, in peoples pockets. Sony/Sharp could have done it sooner, if they'd made better hardware and been cohesive with their late-90's/early 21st-century Linux/e-Tron strategies, but make no mistake, Apple are a newcomer to the vendor-supplied online software repository scene. Albeit, a very powerful, sexy, one.

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smacktoward 673 days ago | link

> Ubuntu and the Linux world in general has had app-stores long before Apple came to the party

You're kidding, right? The difference is that software in Linux distro repositories (which is what I assume you're referencing) is both free as in beer and open source. Which kind of makes it the opposite of what most people think of when they say "app store."

(Pre-emptive nitpick: it's true that Canonical has recently started offering commercial software via the Ubuntu Software center, but that came many years after Apple's App Store launched.)

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primitur 673 days ago | link

I'm talking about the appstores/repo's as technical features of an installed operating system base. We in Linux have had the ability to easily access app-store catalogs for years; Apple have built theirs relatively recently in comparison.

And the fact that there has been free as in beer, and open source 'walled gardens' is exactly the point I'm making: Sharp could've had an app store in the 90's, they already had the repository and just needed to add a customer element; this is the only new thing Apple has added to the game. Repo's were old hat until it morphed into Appstores.

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pjmlp 673 days ago | link

> The biggest culprit here, in my view, isn't Apple, PRC, or the patent system.

The biggest culprit are the customers that blindly accept this model to buy applications and give to such companies money to pursue their practices.

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bambax 673 days ago | link

But what are they to do...?!?

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ktizo 673 days ago | link

Start organisations that make cool stuff, or join those that already are. If you think something is missing from the world, the best way to do something about it is to build it.

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Karunamon 673 days ago | link

>and it can be taken away

Except this has never, ever been done to anything but malware. Not even apps that flagrantly and blatantly violated the store rules and got taken down are removed from end user devices. Not even apps which were pulled down for patent or copyright infringement.

It isn't going to happen.

Until such time as the killswitch is abused, this remains a slippery slope argument with no basis in reality.

If you're worried about your apps, back up the IPA's. You kept your //e floppies around somewhere, didn't you? Is the problem that once apps are removed from the appstore, you can't redownload them? Can you buy Oregon Trail for the original Apple 2 officially anymore?

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Chris_Newton 673 days ago | link

>and it can be taken away

Except this has never, ever been done to anything but malware.

I think Orwell might have something to say about that. Or at least, the people who (thought they had) bought his books from Amazon might:

http://news.cnet.com/8301-13860_3-10289983-56.html

Until such time as the killswitch is abused, this remains a slippery slope argument with no basis in reality.

The trouble isn’t just this particular killswitch. As jaysonelliot was suggesting, the really insidious problem is the general trend that even when you think you’re buying a permanent copy of a knowledge work, you are often not getting what you think you’re paying for any more. I’m not sure which is worse, the dubious business models or the fact that the simplest of commercial transactions on-line routinely comes with absurd amounts of legalese attached, but neither is a welcome development IMHO.

I’ve never personally been the victim of an app store revocation, because I saw that one coming and won’t spend my money on unsafe purchases like that. But I’ve certainly seen the damage of phone-home activation, after the boot drive of my main workstation failed. Two pieces of high-end professional software, both legally purchased on physical media by my own company (each at a four-figure price), were at risk from this. It took weeks of chasing the software companies to get the licensing/activation concerns resolved, during which time one piece of software was unusable and the other was reportedly at risk of shutting down any time. It even turned out that both of those companies had completely screwed up the registration and thought my company’s licence keys were registered to someone else, and we really did get to the point of my sending them photographs of original invoices/packaging/serial numbers in one case.

In my country, hacking into someone’s computer and causing that level of damage would surely be a criminal offence under the Computer Misuse Act. I believe that remote blocking of legitimately installed software by, for example, phone home activation/DRM schemes or post-sale deletion by an app store should also be considered an offence. After all, the end result is much the same. I’ve never had the chance to ask a lawyer why it isn’t (or maybe it is, perhaps even under the same legislation, but for whatever reason the culprits aren’t being prosecuted). And if it can be a criminal offence in various jurisdictions to circumvent technical measures in order to do otherwise perfectly legal things with a copyrighted work you’ve bought (OK, “licensed”, but while I appreciate the need for lawyers to be precise, we all know how most people are going to understand the transaction), I don’t think it’s unreasonable to make it an offence to abuse such technical measures from the other side as well. Maybe we should have some sort of safe harbour provision to protect companies who genuinely make an innocent mistake but correct it immediately on notification, but the basic principle that abusing remote deactivation is illegal seems only fair.

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Karunamon 673 days ago | link

>I think Orwell might have something to say about that.

Note that we're talking about Apple, not Amazon. And I doubt that it will ever happen on Amazon again either, after the PR drubbing they took after doing it the first time.

And your other anecdotes are well and good, but show me where this has happened with Apple. We're talking apps, not books.

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randallsquared 673 days ago | link

Unless you think that Apple is immune to injunction, the mere existence of the capability to remove apps from customers' devices is a sort of attractive nuisance. Now, it could be that precedent will be established that removing infringing or other undesirable content or applications from third-party computers is not permissible. Until that precedent exists, though, the risk seems high that precedent will go the other way.

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ralfd 673 days ago | link

There is precedent. Not in a legal way, but in the judgement of the public. Amazon remote erased an eBook in 2009, ironically "1984", from Kindle devices because the publisher didn't have the copyright and the real copyright holder demanded it from Amazon. It was a PR nightmare! CEO Jeff Bezos had to offer a public apology to mitigate this mistake. I don't expect a big company will make this mistake again.

http://slashdot.org/story/09/07/27/0541212/jeff-bezos-offers...

Google first pushed the killswitch on an App in March 2011, a trojan malware for Android, and nobody really complained. Apple on the other hand never triggered the killswitch to date. They also don't have magic powers. Make a backup the iOS device and in the unlikely event the App isn't working on a future OS update or Tim Cook is getting insane, just install the backup again.

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randallsquared 673 days ago | link

There is precedent. Not in a legal way, but in the judgement of the public.

You say that you don't think that a big company will pull apps or content again, and then you provide an example of the same behavior from a big company (Google), where public outcry was limited.

The Amazon incident was why I said "or content" in my original comment. It's already happened more than once, as you note, and some cases prompted outcry and were reversed, and some did not and were not. But more importantly, none of these were cases where a court ordered the company to do this, and it matters far less (to Apple, Amazon, or Google) what the public thinks about an action that they were forced to do by law. They'll just shrug and provide the injunction.

Any application that requires making a backup and restoring after every killswitch usage is not going to continue to have a customer base, and therefore there will be few or no updates, and that will be that. It doesn't matter that it's technically possible to get around the problem, if having to do so reduces your audience by 95 percent.

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quanticle 673 days ago | link

This is already a PR nightmare for Prentke Romich and Semantic Compaction. They've shown that they don't care about public opinion (or at least broader public opinion). They have a duopoly on their (very niche) market and are going to do whatever it takes to defend it. It's absolutely possible that their next legal move will be to ask Apple to proactively remove the app from iPads and to file for an injunction if Apple does not do so voluntarily.

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ricardobeat 673 days ago | link

The capability to remove apps from customer's devices has always existed in desktops since the internet, even for those you keep in CDs, as long as you are connected and receiving OS updates.

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Karunamon 673 days ago | link

Really. Could you provide an example of this?

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ricardobeat 673 days ago | link

It is technically possible, doesn't mean it has been done (or maybe it has, Apple issued a patch a few weeks ago to remove malware on OSX?). OS updates could install anything onto your machine, including a tool that removes/blocks whatever it wants.

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Karunamon 673 days ago | link

It is technically possible for me to write and distribute a virus that erases anything but GPL-licensed software from the disk of any computer it infects, sends all your money to the FSF, and turns your computer off at 8pm every night to ensure you get a good night's sleep.

However, both of these scenarios aren't happening in the real world.

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lloeki 673 days ago | link

> That software is my property. I own it

Technically, no. I'm pretty sure that if you cashed for a copy of WordPerfect on Apple II, that software was licensed to you for unlimited time use and you don't own any bit of it.

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ArbitraryLimits 673 days ago | link

Well, this is really getting down to a philosophical level. You can't technically "own" any land at all in the United States, for example, the most you can get is unlimited use rights in perpetuity. Stop paying your property taxes for a few months and you'll find out who actually "owns" your land real quick.

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leot 673 days ago | link

All ownership is, at base, socially constructed legal artifice.

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rmc 673 days ago | link

That depends. Usually, yes the person owns it, in the same way you own a book or a VHS or a DVD. Copyright law prevents you from copying your software/book (Driving licencing law prevents you from driving the car you own without doing a test for example).

This "licence" thing is usually a fiction sold to consumers by big companies to try to pull the wool over their eyes.

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singlow 673 days ago | link

The license is not a fiction. It grants you powers that you would otherwise not have, only holding the installation media. For example, it grants you the right to make copies of the software - usually one for installation, one for execution and one for backup.

It does not, usually, grant you permission to make additional copies for execution on other computers (without deleting the first one).

Your use of this software is not limited by the license, it is extended. Without a license, installation media for copyrighted software has no legal value.

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bitwize 673 days ago | link

Vernor v. Autodesk says otherwise.

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mbreese 673 days ago | link

It would be more correct to say that they own the physical media and a license to use the software on the media.

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martingal 672 days ago | link

Doesn't the license granted by SfY to Maya's parents include a 'peaceful enjoyment' clause ? Such clause should hold them harmless of any claim of 3td party patent infringement. And if the infringement can't be cured, SfY should offer them a replacement solution at no cost.

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astrodust 673 days ago | link

They're two different worlds. On one hand you have an App Store where an infinite number of copies of an application can be legally obtained even when it'd be impractical or impossible to make physical copies. This enables individuals to produce apps used by millions. How many people were able to pull of what the founders of Sierra and Elecronic Arts did back when they had to hand-copy floppies and find distribution in sparsely scattered retail stores? Then it was exceptional. Today it's almost routine.

On the down-side you have the rather transient nature of the platform where bit-rot happens much faster. Theoretically you can keep your iPad in its frozen state in perpetuity, backed up and re-imaged onto a replacement device if necessary. If you start upgrading, the half-life of applications kicks in and you're going to start losing some of them over time.

It's not clear which is better in the end.

The solution to this software problem could be to make an open-source version or one that side-steps the patents, whatever those are, as cleverly as possible. Then it can be distributed, instantly, to those who want or need it.

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Uchikoma 672 days ago | link

How is an offline iPad more impractical as your 1980 computer?

(I'm against software patents, I'm against media licensing instead of ownership for the record)

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fadzlan 673 days ago | link

Even without the "app store" model, the company in question could still prevent the access to the said application by court injunction. It is not to the stage yet now, and while you can say that Apple acted prematurely, it is a matter of time that such injunction happen.

And with the App Store model, the application is took down from the store. You still have the local copy. There is no updates from the App Store anymore, but do you think there will be updates from the developer when the court injunction finally happens?

Bad laws need to be fixed.

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flyinRyan 673 days ago | link

> I'm licensing it, and it can be taken away, or I can be forced into "updates" that may change it in ways I don't want.

So, iOS apps are like web apps then?

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freehunter 672 days ago | link

That was the originally stated intention. iOS 1 didn't have an app market. Everything was supposed to be written in HTML5+JS and accessed via a browser.

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kevinalexbrown 674 days ago | link

There seem to be three parts: 1) Are PRC and Apple morally wrong for enforcing and not fighting patent claims? 2) Should patents work in a way that incentivizes PRC and Apple to behave this way? 3) Irrespective of (1) or (2) what can be done?

(1) The answer to this is somewhat ambiguous for any company with investors. Sure, I want my companies to behave in morally responsible ways. On the other hand, there are hundreds of other ways to save and improve lives. If we wanted the companies we invest in to maximize quality of life improvement we would get much further providing vaccinations or microloans to the third world where owning an iPad is as much a pipe dream as winning the lottery (per unit money, energy, whatever). If we want larger public access to scientific advances, perhaps we should fund more public science? Or, we should change the way patents work (2).

(2) This to me seems like a very reasonable question. Aside from patent wars that might hurt your favorite smartphone os vendor, there are real concerns. Drug companies are incentivized to create substances and methodologies that drastically improve the quality and duration of lives in both first and third world countries. On the other hand, intellectual property protection for drugs (until they become generics) does cost lives. But we shouldn't forget just how powerful those incentives are. All the awesome research done in university laboratories (one of which I work in) is nothing without the ability to take a drug from "lab-rat plausible" to "market-ready". Certainly patents don't exist to facilitate personal wealth. But just because they do generate wealth doesn't mean that their intended goal has been forgotten, short-term losses notwithstanding.

Even if we answered (1) and found PRC or Apple to be morally culpable, it misses the larger issue: if society feels that this girl, or others who benefit from patented technology should be allowed to use it, someone's got to pay. Either it's the companies and their investors (the obvious point: not just rich folks), or it's taxpayers through some form of state-sponsored licensing (edit: or some other state-funded mechanism). It's tremendously easy to blame only Apple and PRC (even if they did deserve it). It's a lot harder to put your money on the line, so that families like this one can solve a heartbreaking problem.

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cynicalkane 674 days ago | link

This would all be pertinent if the software patents in question were actually novel inventions worthy of protection.

One of the patents is for a "method for dynamically redefining the keys on a keyboard". I mean, come on.

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sp332 672 days ago | link

Are you seriously judging a patent by its title? This patent requires a touchscreen and a context-sensitive memory with strings of text. It's not just a keyboard mapper. http://www.google.com/patents/US5920303?hl=en

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swalsh 673 days ago | link

The key is, was that novel when the patent was first filed?

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blahedo 673 days ago | link

Given that xmodmap has been around since the 80s, probably not.

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asmithmd1 674 days ago | link

"or it's taxpayers through some form of state-sponsored licensing"

Why do you say taxpayers must pay the license fee? A company might be happy to pay a royalty on a patent but as it is now patent law allows a patent holder to prevent anyone from making or using a patented invention - in other words they could sue Maya directly for infringement. Music copyright law, which issues from the exact same clause in the constitution as patent law, provides for a compulsory license of any song. A band knows before hand exactly how much it will cost to "cover" someone's song.

If you are found to be infringing a patent your financial exposure is almost un-bounded. If there were a compulsory license provision in patent law like their is in music copyright, companies would know exactly how much they were risking if found to be infringing a patent

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regularfry 674 days ago | link

The fourth part is where Apple are acting in place of the judiciary. Taking the article at its word, Apple have taken and enforced a "guilty until proven innocent" stance with respect to their own suppliers and customers. Ignoring for a moment how bizarrely arrogant that is, there's a very good reason we rely on independent judges and juries to get these questions right.

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jan_g 673 days ago | link

Yes, the same approach is taken for example by Facebook. If there's a complaint, Facebook will first freeze an account and only unfreeze it after the dispute is resolved (by the parties themselves or legally through court). Shoot-first-ask-later approach.

I don't know why this is prevalent approach, since 90% of the time it's the big companies initiating disputes. So small companies are taking the hit.

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regularfry 673 days ago | link

My guess is that it's laywers being paranoid. If Apple didn't stop the app from being distributed when they were notified of a problem and a court later upheld the complaint, they might be sued for contributory infringement, or whatever the relevant patent term is.

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elehack 673 days ago | link

We have a solution for this: preliminary injection.

IANAL, so perhaps this is still opening up for lots of liability, but I'd much prefer Apple say "You want it taken down? Ask the judge for a preliminary injunction. Until then, go away."

Preliminary injunctions are the due process mechanism for causing the action to cease while it's litigated rather than continue. They, not Apple's whim/decision/liability-aversion, should be how this kind of thing happens IMO.

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regularfry 673 days ago | link

Precisely.

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mkl 673 days ago | link

3) Irrespective of (1) or (2) what can be done?

I don't know about the broader problem, but for the present situation my first thought was that someone should make a clone of the app that can be sideloaded onto an Android tablet. That's an (almost) immediate fix, but unfortunately it's hardly a solution. It seems like it could only be distributed to one or a few people before it risked similar lawsuits, and there's the long term to think about, too. Besides just OS updates, what will happen as kids using this software grow? For some, but not everyone, reading will open new avenues for communication. For others, ongoing development to increase sophistication seems necessary.

Does anyone know if Speak for Yourself is still available outside the US, where patents are saner? I tried looking, but couldn't figure out how to search iTunes from the website.

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kika 674 days ago | link

I don't know exactly how patents work for drugs, but I don't believe that you can patent an already existing (generic) drug, but in pills colored red and blue, for example. And another patent for yellow pills. And another and another. Alas, in the software industry this is very much possible (and being done every day).

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sirclueless 674 days ago | link

That's definitely false. You might be able to patent a new delivery mechanism or something, turn a generic into a gel capsule and patent that maybe, but the important thing is that once the generic drug passes out from under its patents anyone can create it.

To use an analogy with razors: I might not be able to make a razor with 4 blades and a cushioning lotion pad above and below because Gillette will sue me, but I can make a razor with three blades set in plastic because it's been so long since that innovation came along. It might not be as snazzy and hence less profitable, but it gets the job done.

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jeffool 674 days ago | link

And if you own a drug patent, you can continually extend the patent via a process called "evergreening". Pharmaceutical companies make minimal changes and get patent extensions. These changes can include the color or flavor of medicine. It's illegal in many other nations, but here in the US... And we wonder why we pay so much for medicine.

Patents as they work today seem to curtail progress at every turn.

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anamax 673 days ago | link

> Pharmaceutical companies make minimal changes and get patent extensions. These changes can include the color or flavor of medicine.

So? Other companies are free to make the unchanged version after the original patent expires.

If some companies are unwilling to make drugs unless there's some sort of monopoly, what does that tell you about what they'll do if there's no way to get a monopoly?

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jeffool 673 days ago | link

>So? Other companies are free to make the unchanged version after the original patent expires.

No they're not. You misunderstand; the original patent doesn't expire. It's EXTENDED. The original drug does not go into any public domain to be manufactured or built on by other companies.

Many drug manufacturers make generic drugs, but that number has decreased, which has led to behavior like the larger original drug manufacturers. I won't allege outright collusion, but it's crazy when everyone in an industry starts agreeing at one time that a medicine isn't profitable... Leaving a strong demand and opportunity for any one of them to step in and clean up... And no one does.

And before anyone wants to jump into the cost of research, some pharma businesses like GSK, spend about twice on sales and business costs than they do research[0]. And then there's the amount they DO contribute that gives patenting applicability to mostly public research.

It's quite depressing.

[0]http://www.gsk.com/investors/reps11/GSK-Annual-Report-2011.p...

Around page 136, I think.

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vidarh 673 days ago | link

> the original patent doesn't expire. It's EXTENDED.

Really? I can find no indication that US patent law allows for extension of patents at all except as a result of delays caused by the USPTO or regulatory delays (e.g. reviews by the FDA).

Everything I've seen about evergreening has been tied to filing new patents covering things like delivery systems to make it harder to produce a generic that doesn't infringe, and frustrating competitors by threats of lawsuits over trademarks, marketing, packaging etc.. None of that would be necessary if they were able to just obtain an extension on the original patent.

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jeffool 673 days ago | link

You're right, I'm wrong! There is indeed a notable difference between ACTUALLY extending, and "de facto" extending of a patent, by patenting a slightly different aspect of the same drug, such as delivery, or changing a trivial aspect like color or labeling and re-patenting the same drug. One is a use of a bad system, one is misuse of a system.

Thank you for pointing out what I wasn't able to push through my thick skull!

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anamax 673 days ago | link

> some pharma businesses like GSK, spend about twice on sales and business costs than they do research[0].

Marketing and sales costs include free and discounted drugs for poor people. It also includes costs for educating doctors?

You clearly think that too much spending on things other than research is wrong. So, how much spending on the things that I listed (which comes under the categories that you complained about) is too much?

Now that you understand more about how patents work, my question about generics still stands. Pfizer wants you to buy new improved lipitor but there's no patent protection on old lipitor. Pfizer's lipitor sales just dropped 71% and (IIRC), they're dropping prices.

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jeffool 669 days ago | link

Sorry. I didn't see this reply.

I don't thing spending money on marketing (or other things that research) is "wrong", I only tried to curtail what I typically see of cries as "Oh, but they spend so much money on R&D!" "So much" is relative, and speaking relatively, they don't.

A popular tactic for "educating doctors" is hiring locally recognized TV reporters/anchors looking to get out of their business to press flesh and hock pills in doctor's offices as sales people. That may include "educating" but it's definitely also "marketing". Some people probably get a few doses of helpful medicine this way. I don't deny.

But how much is too much? When every nightly newscast is full of vague commercials to the point where even some people in perfect health know which drugs do what, and the potential side effects? I think that's probably a bit much overkill. Especially considering many others will just know "Ohhh, that's the one that makes you sleep good and has a lightning bug in the commercial!"

Also, I looked up Lipitor. It was patented in 1987. Generics were set to enter the market in 2009, but were stopped after Pfizer sued. The generics won, then Pfizer sued again and Pfizer won, then generics sued again, and Pfizer settled out of court. So now, 25 years after the filing of a patent designed to last 20 years, generics enter the market. I don't understand, what was your question about generics?

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ekianjo 674 days ago | link

It's been a long time the patent game is not about innovation anymore. The review process for granting patent fails to be transparent. And patents should never be made to last so long in the first place.

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antihero 673 days ago | link

> someone's got to pay

I don't believe that. The app has been made, the app has been purchased, and it's not taking away from PRC's sales because PRC's devices are not an option.

I also dislike this culture in that everything has to have monetary value. If my house and food was provided for me, I'd love to develop apps like this for free, because in life, helping others is far more important than material gain.

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flyinRyan 673 days ago | link

> I'd love to develop apps like this for free

Many of us would, but we don't have time exactly because our houses and food aren't provided for us.

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shmerl 673 days ago | link

You miss the main point, that software shouldn't be patentable in the first place. Software patents can't possibly serve any positive purpose.

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wissler 674 days ago | link

There is no moral justification for patents. Period. There can be no actually moral argument that says "you are not allowed to think of the same thing this other fellow did and then trade it with someone."

Patents are a form of feudalism. The very word "patent" is rooted in feudalism, where it used to be "land patents" that were granted to the landholders in the middle ages.

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LinXitoW 673 days ago | link

I'm not sure anyone would ever claim that patents are morally justified. Their justification is cultural, in a sense. They are there that invention is worth it. Invention and innovation, in turn, bring about advances for the entire culture that has surrendered these specific rights, because it sees more value in progress than in the rights that are given up for it. I don't know whether a culture without patents would still advance and have as many inventors, but on the surface, this sounds like a reasonable trade-off.

I would restrict patent law to force a patent holder to license their patents to whomever for a reasonable price. We already have that for standards relevant patents, but i think it should apply to all patents.

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air 673 days ago | link

"I'm not sure anyone would ever claim that patents are morally justified."

Objectivists do that:

Rand argued that limited intellectual property monopolies being granted to certain inventors and artists on a first-to-file basis as moral because she viewed all property as fundamentally intellectual.

http://en.wikipedia.org/wiki/Objectivism_%28Ayn_Rand%29#Poli...

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brazzy 673 days ago | link

There is a second justification for patents that often gets overlooked: in order to patent an innovation, you have to exactly describe that innovation, and this discription is made public, and after the patent expires everyone is free to use it.

Without this, there would be a strong incentive to keep innovations secret as much as possible, which may have them end up being lost.

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Confusion 673 days ago | link

You misunderstand patents. Despite what is reported every so often, you cannot patent abstract concepts: only specific ways to execute upon those concepts. The title of a patent is irrelevant, but it is the title that gets the press.

Patents do not disallow you to think of certain things and they do not disallow you to share those thoughts. They only disallow you to implement a specific solution to a specific problem, for a specific period of time. Patents get struck down for being too broad.

If having to be struck down is the problem, then look at the justice system, not the patent system.

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quanticle 673 days ago | link

>Despite what is reported every so often, you cannot patent abstract concepts: only specific ways to execute upon those concepts.

That was true only up until software patents were approved. In software, there is no hard and fast line between concept and execution. Without a physical product, the concept is the execution.

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wissler 673 days ago | link

No, you misunderstand ethics. There is and can be no ethical principle that bans you from creating a physical object that happens to be similar to an object someone else created, unless you had explicitly consented to being bound to an agreement where you would refrain from doing so.

And you misunderstand patents as well, but that's not the fundamental issue. The fundamental issue is that you cannot make an ethical case for patents, on the contrary, they are a gross usurpation of a human being's right to create and trade. This is obvious to anyone who ignores the propaganda they were taught in high school.

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flyinRyan 673 days ago | link

Do you realize that, regardless of how it's abused now, in a world with zero patents no little guy would ever be paid for his idea? Big companies could just see the idea, realize the value and task 100 people with copying it exactly.

Further no company would bother with R&D because as soon as they make a breakthrough everyone else will simply steal the idea and sell for pennies more than cost of production. R&D costs could never be recouped so no one would ever do it again.

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DennisP 672 days ago | link

> no little guy would ever be paid for his idea

That's always the rhetoric but in practice patents usually protect big companies at the expense of the little guy. This is especially true in software, where getting the patent is generally a lot more expensive than creating the invention. Only the big companies can afford to file patents for every little trick of coding they come up with.

And for all types of inventions, it's generally very expensive to litigate.

All sorts of inventive software was created before there were software patents, so empirically, it's clear that in this business at least we don't need patents.

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wissler 673 days ago | link

Men who have minds large enough to envision the kinds of ideas that would deserve a patent (if patents were moral) are precisely the kind who would invent regardless of whether they could get one. See Nicola Tesla or the many scientists throughout history who have achieved great things without having a carrot and a stick. Or see Linus Torvalds.

The kind of men who refuse to engage themselves in creation without being prodded are the kind who patent most of the trivial ideas we see patented today.

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flyinRyan 672 days ago | link

I'm sorry but this is just not true. You say the kind of people who deserve a patent would do the work either way and then you suggest a handful of people. Many, many people have created things for the purpose of making money. Your world would eliminate people like Steve Jobs and Bill Gates. Later in life, when Jobs had billions, he didn't seem to care about money anymore but in the beginning Apple tried everything. They even had a clothing line.

As for your examples, Linus didn't invent. He made a version of an existing OS and started with an existing version of a copy of that OS. He did it for fun, but one must also recognize that he's gained a tremendous amount by this seemingly "benevolent" action. Fresh out of college he could take much more interesting jobs than most people with his background could. His "gift" ended up being a loss leader for his career.

So if we were reliant on only having people like Tesla to push us forward we'd be nowhere near where we are today. Tesla was brilliant but there are just far too few people who think and work as he did.

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wissler 672 days ago | link

"Your world would eliminate people like Steve Jobs and Bill Gates."

You've got to be kidding. Do you know nothing about the history of software?

"If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today."--Bill Gates

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roopeshv 672 days ago | link

"that's the great thing about internet, you can make up quotes, and attribute it to others" --abraham lincoln

so, please cite.

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wissler 672 days ago | link

Please use Google instead of posting mindless sarcasm.

http://www.nytimes.com/2007/06/09/opinion/09lee.html?_r=1

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roopeshv 672 days ago | link

please provide citations and don't expect people to clean up after you. and still it's a hearsay, no link to memo (although internal)

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wissler 672 days ago | link

"please provide citations and don't expect people to clean up after you. and still it's a hearsay, no link to memo"

Who do you think you are that you can tell people on what terms they can cite a quote from the New York Times? No, I am not going to do a scientific research paper tracing the historical roots of this oft-cited (in reputable media) quote.

Please take your head and pull it out of your ass.

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roopeshv 672 days ago | link

you can suck my dick then

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jeremyarussell 673 days ago | link

Tesla was one in a million. For your ideas to work you would need to teach the entire 7 billion strong population of humans that we need to peacefully work together as a species. I'm sure you'll be met with great success. Until that day it is necessary to protect rights in a manner that lets people know they can do great things and not have to worry that someone will steal their years of hard work.

I don't agree with people filing this lawsuit. I don't think their idea is all that novel. I also think patents shouldn't last longer then it takes to recoup the investment.

TL;DR = People don't work that way, but yeah the patent system is currently ridiculous.

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wissler 673 days ago | link

jeremyrussell: "People don't work that way" is question-begging (if you don't know what that logical fallacy is please see Wikipedia).

The point is that they ought to work that way. People can and should change. Answering "well they don't work that way" as an argument against this is fallacious. I mean, take your argument and apply it to (say) cannibals. A cannibalistic tribe would say "well, we eat people, we've always eaten people, therefore things will never change."

There can't be a logical, rational argument for patents. Which is unsurprising, since patents are clearly barbaric. So barbarians defend patents using (surprise) barbaric illogic.

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Confusion 673 days ago | link

  There is and can be no ethical principle [..]
I wasn't addressing the ethical part of your claim at all, but since you insist: there can be a moral argument in favor of patents. It goes like this:

* Corporations are legal entities that are allowed because they were expected to, and have been shown to, advance our average wellbeing

* Corporations more effectively increase our average wellbeing if they are encouraged to heavily invest in innovation. They receive this encouragement by allowing them temporary monopolies on their inventions, thus enabling them to profit from their investment

* On average, the population profits: they have more free time, more money, a better health and can engage in 'creating and trading' all they want, except for a few specific instances that have been sacrificed in order to enable them to have these resources and this wellbeing in the first place

It's a trade-off our government made for us, in the belief it would be a net benefit. Things seems to have taken a wrong turn somewhere, but the original intent of the patent system was for the public good. That is a valid moral argument. Which doesn't mean you have to agree with it.

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sp332 672 days ago | link

This is completely wrong. Patents are supposed to protect small or individual inventors from having their work ripped off by larger manufacturers. Large companies are not the reason we have patents. They don't need patents because they're hard to compete with anyway. Patents are for the good of society by helping individuals, not by helping large corporations.

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Confusion 672 days ago | link

Corporation != large corporation. A small neighbourhood family shop is a corporation if they've legally separated their personal and business finances, which is usually advisable. Limiting individual liability and being able to share ownership were the original reasons for allowing corporations. This is true for small and large corporations.

Corporations also exist for the good of society. They allow individuals to limit their liability and share a risk with others. Patents are granted to individuals, but those individuals are free to bequeath them to the corporations they are part of. Or they have freely signed an agreement that they will bequeath them to the corporation.

Now I agree the original reason for patents wasn't to encourage corporations to do R&D. I only gave a nutshell outline of the argument: I wasn't trying to be historically, philosophically or legalistically thorough, so I don't think this kind of criticism is very appropriate. I'll happily admit being wrong, but it is certainly not 'completely wrong': corporations were never restricted from being granted patents, even though that has been suggested. The common argument is the same argument given for individuals: protect the inventor or his corporation.

Neither corporations nor patents came into being with immoral intentions. Both ideas have actually proven quite successful. Unfortunately, we are now seeing some excesses of (the combination of) them that suggest the rules need to be changed.

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wissler 673 days ago | link

This is horribly embarrassing argument. It's a blatant post hoc ergo proper hoc fallacy. What's worse is that it ignores the central point: the cost of your system is that individuals who think of an idea that happens to match one that is patented by one of these corporations gets the tar beaten out of him if he tries to use/trade it. You can't justify this violence, you can only try to sweep it under the rug, as you have attempted to do here.

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jholman 673 days ago | link

Speaking of embarrassing, you're embarrassing people who advocate against patents, with your incoherent vehemence. The comments you've been responding to have been civil and contributory to the conversation, and your responses, I think, have been less than civil and perhaps not very well-crafted towards contribution.

If the rest of this comment appears to be a personal attack, I apologize; I would ask that it be read as an analysis of the above thread, with an eye to improving future discourse.

-------------

The fact is, people DO make arguments of a moral nature in favour of patents. And last I checked, there's no gold standard in validity of moral arguments. Your opening salvo ("no moral justification for patents, period") is interpretable as either a claim about the behaviour of humans, or a claim about universal ethics; that would make it obviously false or obviously laughable, respectively.

You ALSO, in your opening salvo, misrepresented patents ("you are not allowed to think of... and then trade..."), and Confusion fairly-politely tried to help you out. You replied with "No, you misunderstand ethics", which aside from being a rude escalation of conflict is also a non sequitur (since the use of "No" implies you're replying to his/her content, which you weren't).

THEN, Confusion was again polite and outlined a moral argument which has been taken by many participants in the broader societal discussion about patents, including the ones who make the laws in several countries over a few hundred years. She/he was even clear that the consequences alleged by this argument, with respect to the public good, appear to be at least partially divergent from the consequences observed in reality, AND explicitly pointed out that the argument isn't unassailable ("That is a valid moral argument. Which doesn't mean you have to agree with it.").

I think any reasonable observer would agree that there IS a moral argument in favour of patents. It has some premises that not everyone agrees with (e.g. a sort of utilitarian framework). It also contains some contentious claims about the interaction between incentive structures and behaviour (e.g. inventors wouldn't invent, AND/OR drug companies wouldn't do FDA testing, without patent "protection"), which are clearly hard to test the truth of, and many reasonable people disagree about to what extent they are true. (I myself find the "drug company" argument very persuasive (I agree with kevinalexbrown above), and the "inventor" argument highly suspect (I mostly agree with you, below, in your comment about Tesla and Torvalds), but the point is that intelligent thoughtful people (or even HN commenters) can disagree about these things.

Hopefully I don't have to go into detail about how opening a post with "This is horribly embarrassing argument." is nothing more than verbal abuse.

And your shot about post hoc ergo propter hoc is a little missing the point: while some crazy person COULD say "look we got an internet because of the patent system, therefore we were right about patents", and I take your point about that hypothetical argument being an instance of the post hoc ergo propter hoc fallacy, I don't think anybody actually does make that argument. We all know we haven't sampled the universe in two states, and we all know that we're arguing about untested hypotheticals (about what WOULD happen with less patents or more patents, and about what WOULD HAVE happened in the past say 50 years).

And one last complaint about your rhetoric: while I acknowledge that ultimately any law (at least in all extent societies) is ultimately backed up by threat of violence, and thus in some sense law is violence, it's ludicrous to conflate the enforcement of near-consensus with violence. Unless you literally meant violence, and literally meant "gets the tar beaten out of him", in which case of course we all know that's not what happens to those who lose in patent fights. What happens is that profits that they have taken, which are judged by the courts to have been earned in violation of the framework of law, are taken away, and/or they are required to make good profits that they have been judged to have unfairly denied to others. Much as other proscribed commercial activity (e.g. fraudulent product misrepresentation, e.g. cartels) would be penalized. So, either way, your phrasing about violence is at best a distraction, at worst a falsehood.

-------

The thing is, it's weird having to write this little attack on your little attacks, because I agree that the first-world patent system has raged dysfunctionally out of control, and is stifling innovation rather than promoting it. (That's ALL it's doing wrong, mind you, because if you stick to 30-year-old products and technologies, you'll never notice this stuff. But I want to live in the FUTURE, never mind the present!) But I think the argument is narrower than you make it seem (again, consider drug companies), and I think we could afford to keep it more civil than I read you to have done, at least among basically-reasonable people.

Hopefully I have myself managed to avoid destructive incivility.

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wissler 673 days ago | link

Next time you're seething with rage that someone crossed your arbitrary line about what you mistakenly think is "civil", save your breath and save your energy.

As to your silly play by play, it's all just your own self-serving spin. You have some bogus theory of civility that you mindlessly cling to as if it were a religion, it's a wrong theory, and that's really all the substance there is to your "criticism." I see your remarks in the same way as I'd see a religious zealot reading me the riot act over violating one of his beloved precepts.

If inside of that babbling rant of yours there is something you actually consider to be a reasonable disagreement, not with my style, but with the logic of my point, then go ahead and point it out without ranting and I'll try to elaborate for you.

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wissler 673 days ago | link

One more thing. I regard patents as nearly tantamount to cannibalism: patent trolls eat the efforts of honest, productive people. I don't think gentle words are appropriate and civilized for cannibalism proper, nor for the evil of patents. On the contrary, to treat these leeches as if they were somehow being reasonable is the height of being counter-produtive.

The trolls don't mince words: they readily call it "theft" if you happen to be using something they patented. If we mince words then we loose from the very start, for the moral argument is the most powerful.

Which is precisely why you try to turn it on me given all your hypocritically impolite scolding about me not being polite enough for your tastes. If you're opposed to moralizing, don't moralize, not even about people who moralize.

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