Richard Stallman: Legislate That Using Software On General Purpose Computers Is Not Infringing
from the one-way-out dept
Wired is running a series of opinion pieces concerning ways to “fix” problems with the patent system today (we’ve made our own suggestions in the past if anyone’s interested). It started with a suggestion from Mark Lemley that was similar to his other recent statements about fixing the problems of software patents by actually applying existing law to stop functional claiming (i.e., claiming around general concepts rather than specific implementations).
The second post in the series comes from Richard Stallman, who notes that it seems quite unlikely that the US will carve out software patents, noting (correctly) that this might not solve the problem anyway, since patent lawyers would just change how they write patent applications to get around any such carve-out. Instead, he suggests a different solution: limiting how widely software patents can impact new technology:
My suggestion is to change the effect of patents. We should legislate that developing, distributing, or running a program on generally used computing hardware does not constitute patent infringement. This approach has several advantages:
- It doesn’t require classifying patents or patent applications as “software” or “not software.”
- It provides developers and users with protection from both existing and potential future computational idea patents.
- Patent lawyers can’t defeat the intended effect by writing applications differently.
It’s an interesting suggestion, but I’m not so sure it would go over that well. People would certainly question why general purpose computing gets a pass. Also, the “generally used computing hardware” standard could be kind of hard to define as well. It still seems like there are more elegant solutions that focus on the real root of the problem, rather than trying to “carve out” certain impacts that we don’t like.
Filed Under: computers, patents, richard stallman, software patents
Comments on “Richard Stallman: Legislate That Using Software On General Purpose Computers Is Not Infringing”
Baby in an ocean
This is beyond a baby in dirty bathwater that we should avoid throwing out; it’s more like a baby that’s been drowning in an ocean.
The solution I like best so far is to limit the number of awarded patents to something more like one per official examiner per month; that is -awarded- patents. All applications would be disclosed as a matter of public record. Any patent that a practicing member in the denoted field cannot usefully use would, of course, be invalid. Independent invention should also be a defense (the point of the patent existing is to preclude that research in favor of licencing the patent’s use instead). A compulsory license fee should also be decided per patent, based on the resources expended to ‘invent’ and ‘document’ it. Also, a duration up to (19 years from start of filing year I think?) shall be decided at the same time; this would likely be reduced for fast moving fields.
Re: Baby in an ocean
This is beyond a baby in dirty bathwater that we should avoid throwing out; it’s more like a baby that’s been drowning in an ocean.
At this point it’s not even clear there’s a baby in there anymore.
Re: Re: Baby in an ocean
There next was a baby. Patenting software is nothing more than patenting “thought”. You are not to think a certain way.
If it's now or ever has been publicly available,
then it’s “generally used computing hardware”. Defined that way you should now be totally for it.
Of course lawyers will yet argue, forever, but that problem should be solved with taxing them heavily, or with rope.
Re: If it's now or ever has been publicly available,
I’m confused, who is the evil ‘the rich’ in this story?
Re: If it's now or ever has been publicly available,
You’ve just moved the problem back a step. Now you have to define “publicly available.”
Other solutions
It still seems like there are more elegant solutions that focus on the real root of the problem, rather than trying to “carve out” certain impacts that we don’t like.
Yeah, like change patent length to five years, for all patents. Then no matter how bad anything is, it can only be bad for five years. That might make it unlikely we’ll fix the underlying problems, but that’s already extremely unlikely.
Mike, I don’t get why you are so against carving out exceptions like software or general computing devices. Personally, I think we ought to carve out more exceptions from patent law. For example, software should be exempt. Hardware should be exempt. Anything that is run on general computing devices, any of Babbage’s analytical engines, or arduino and other microcontrollers should be exempt. DNA should be exempt. Business models should be exempt. Anything that cannot have a prototype made out of Styrofoam should be exempt. Anything made with wood, metal, or plastic should be exempt. Anything that is simply the manipulation of carbon, oxygen, or any element that has been, is, or will be on the periodic table of the elements should be exempt.
These are only a start, and certainly more exceptions could be made, but I think it would help patent law out quite nicely.
Re: Re:
Yes, then my dark-energy powered dark-matter raygun will rule the universe and you pesky kids will be powerless to stop me!
Woooooooahahahahahahahahahahahaaaa!
Re: Re:
Part of the problem with carve-outs is that every time you need a carve out, you have to go through Congress. It’s slow and time-consuming.
Also, this conversation:
A: I’d like a carve-out for nano-technology, please!
B: The quantum computing guys are offering me 10 million for their carve-out. Can you match that?
Maybe off topic.
I was always under the impression that the “trade off” of patents was that the public gets to know how to make the thing once the patent expjres. So, why don’t software patents include source code? A patent that describes making an image bounce when you overscroll is patenting an idea; with source included it patents a specific implementation of that idea.
Re: Maybe off topic.
Because source code is covered under copyright, and publicly publishing it would be infringement…or something. Or we could just drop software patents altogether, as nothing in a program by itself is technically patentable.
Re: Maybe off topic.
For one thing, since pretty much every widely-used programming language is Turing-complete, it’s relatively trivial to rewrite any given program in another language. Can you imagine trying to convince a panel of non-programmers that a patented program written in C# was similar to another (allegedly infringing) program written in LISP, or Python, or Brainfuck? By not including source code, they can broaden the patent to include all possible implementations of whatever it is they’re patenting.
Of course, on a more general level, there’s always a bunch of (more or less) efficient ways to calculate the same mathematical result. For instance, I can think of three or four different ways to calculate the Single Value Decomposition of a matrix, just off the top of my head. Suppose somebody (aka eHarmony) filed a patent based on calculating the SVD, and actually included source code. Then suppose somebody else filed a similar patent that calculated the SVD in a different way. Would the second patent be a duplicate of the first, and therefore rejected? Would it be a different patent, and therefore valid? Should both patents be rejected, for being attempts to patent abstract mathematical algorithms? The whole thing suddenly becomes absurdly complicated, which is why (until Bilski) most software patents were filed as State Street “business methods”. Post-Bilski, the rules are even more unclear, but adding source code would only make things more complicated.
This sort of logical and legal quagmire is why I don’t think software should be eligible for any sort of patent protection at all. Personally, I think it would make a lot more sense to protect software using copyright law rather than patent law; with copyright, we could protect the expression of the underlying math without having to worry about which parts of algorithms are actually patentable.
The problem with all forms of IP is that it gets expanded to include more and more in their scope over time. Further patents have moved away from documenting and protecting inventions to monopolizing ideas. In some areas like mobile phones and software there are so many patents that a proper search for prior art is effectively impossible, and that is before trying to carry out any search of the literature.
Patents need to be eliminated, because their only beneficiaries are the lawyers, and large companies who can afford them. Nowadays the main advantage of patents is in keeping start ups out of a market, which can force the fire sale of any patents they had to the incumbents.
Something is required to deal with the problems of the pharmaceutical industry, but this is largely case of financing the the testing that is required to gain approval. Research is best dealt with with via the academic route, and here patents are a hindrance, as they can impede research.
With the pharmaceutical companies bearing the cost of development and approval there is a definite pressure to get drugs approved so that the costs can be recovered. Therefore minor adverse reactions are hidden, and any signs of benfit played up. Further a lot of the test data is treated as proprietary information, when it should be available for for peer review. Patents and the way they shape drug development are nor in the best interest of the public, nor is the way that the pharmaceutical companies fight cheap generics in poor companies in case they compete in the markets where they can charge their high prices.
Society would be better of if patents are done away with.
Why general purpose computing gets a pass
People would certainly question why general purpose computing gets a pass
It’d be interested to look at some of the patents covering modern processors. Wouldn’t these already have claims covering the running of arbitrary programs on the hardware?
Why then would taking a PC with a processor whose patent covers running software – and running software on it – generate a new patent?
Abolish IP!!!
I think adding to this that those corporations that don’t make anything should not be able to pursue patent violations. This one item would dry up the patent abuse for a good percentage overnight.
It’s so broken, this patent system and the copyright system both that it’s a minefield to develop and sell anything right now. Think of how much money could be saved for other things like new product lines, or how much the price would go down were patents not able to seek in court infringements of triple damages. What new things would we see if makers of hardware and software were not afraid of going bankrupt because of these patent trolls?
Throw it all out and make none of it enforceable. You’ll actually see new inventors coming up with new stuff that can make new products and manufacturers willing to make them.
RMS is wise and he has walked the walk so if he is for it so am I.
The real root of the problem is that there are patents. The most elegant solution of them all would obviously be to scrap the system entirely and pretend it never existed, so if that’s what you’re getting at then I must agree 100%.
Unfortunately, that is unlikely to be practical: even if such politically suicidal legislation were passed, the Supreme Court likely would deem it unconstitutional. Outside of that, though, I’m having difficulty envisioning a more elegant approach to the problem than the one RMS advocates here. It fixes the problem now, doesn’t legislate any messy bureaucratic changes in the patent system, and doesn’t require a lot of language to accomplish. I would probably phrase it something like this:
Re: Re:
Patent abolishment might be politically suicidal, but I doubt it’s unconstitutional. The Constitution says Congress MAY create patent rights, but nothing says it HAS to.
Patent actual INVENTIONS!
Why not just going back to demonstrating your physical invention to a patent examiner and demonstrating how it is unique, non-obvious and innovative and deserves to grant you a monopoly on the commercial use.
I chuckle at the thought of a team of Apple developers and lawyers queuing up to demonstrate the unique, non-obvious and innovative ‘slide to unlock’. Much harder than hiding obvious things behind creative lawyer lingo.
Re:
if something is abolished, they MAY does not apply !!!
if it’s abolished it is no longer “MAY” or “MAY NOT”.
Therefore it would certainly be against the constitution.
source code is not in patents, because patents are the METHOD of achieving something, or a description of how they go about doing it..
the particulars, (like the specific code) does not matter, it is what you achieve with that code to achieve a specific result is what is patented.
trying this,, you can patent a method of producing rubber and making it into a tyre, it is the METHOD you are patented, you are not stopping someone else using or inventing their OWN METHOD to create tyres.
you have also not patented the tyre, or the rubber, or the wheel.
you can compete on the market just like someone else who has invented a DIFFERENT method to achieve a similar result.
that is what you dont get, because masnick does not want you to understand..
why, masnick dont you explain how patents work, you of anyone here should KNOW THIS, so why not explain it to your lesser informed readers ??
trying this,, you can patent a method of producing rubber and making it into a tyre, it is the METHOD you are patented, you are not stopping someone else using or inventing their OWN METHOD to create tyres.
you have also not patented the tyre, or the rubber, or the wheel.
you can compete on the market just like someone else who has invented a DIFFERENT method to achieve a similar result.
that is what you dont get, because masnick does not want you to understand..
why, masnick dont you explain how patents work, you of anyone here should KNOW THIS, so why not explain it to your lesser informed readers ??
Re:
How do I know if I’ve achieved the same results with a different method if I don’t know the method you used? I can only know that if I’ve seen the source.
I can’t patent “achieving time travel by bending space-time” because that doesn’t tell you *how* to do that. Similarly, if I just say “swipe to unlock a touch screen device” then I haven’t told you how, just what. The how would be the source.
Maybe off topic.
so what your saying is that there are several methods of achieving the same result, exactly, probably an almost infinite number of ways to achieve most software results.
that is what you patent, the method, not the result.
so if you develop a method to get your mobile phone to produce pop-corn, you do not patent pop-corn, and you do not stop other people inventing their own method of getting their phone to make pop-corn, and you both can patent your different METHODS.
not the result, but how you have invented a new method to achieve that result.
this is a common misunderstanding that occures here on TD, something that Mr Masnick should clear up, but it would degrade his argument to have his regular readers understand that patents do not work how masnick would have you believe they work.
Re:
patent office search, when your filing your own..
the system works well.
Re:
“How do I know if I’ve achieved the same results with a different method if I don’t know the method you used?”
you dont, but you know if you came up with your own method, or used the method you allready knew about.
I had to design a depth sounder (fish finder) test system a few years ago, they allready exist, but we wanted a better one, and a cheaper one. I looked at how other units worked, understood how they worked.
then I designed my own method of achieving the result, i used the same tools as other companies, CPU’s ADC, DAC’s, memory, interface circuitry.
Then I designed my own method of achieving the result, does the same things as other similar units on the market (but mine is better), but I did not have to look at code, or the SPECIFIC methods they used, just the general engineering principles.
I did not have to copy code to achieve a result that code that allready exists does, you just KNOW if your cheating either you are copying someone’s elses work or you are not.
so clean room type engineering can ensure that you can achieve the same results with a clearly different method.
The end result is obvious, for anyone skilled in the art, the specific method to achieve that result is what is not obvious, and what can be patented, it does not stop the progress of technology to have patents, it ensures advancement continues. By ensuring that different methods are explored and employed.
Patent actual INVENTIONS!
>Why not just going back to demonstrating your physical >invention to a patent examiner and demonstrating how it is >unique, non-obvious and innovative and deserves to grant >you a monopoly on the commercial use.
Because you patent the METHOD of achieving something, not the thing itself.
so you walk into the patent office with a car tyre under your arm !!! that’all work. !!!!
you’ve not invetned the wheel, or the rubber tyre, but the tyre under your arm is made from sea water, as you’ve invented a method of turning seawater into car tyre grade tyres.
the tyre is not unique, and is obvious, it’s not even new, and there are allready methods patented on how to create the rubber in it..
it’s the METHOD of achieving the car tyre, or the rubber that is patented not the product itself..
Masnick knows this it should really be up to him, who claims knowledge of the subject to come clean on it. Basically stop lying to his readers, would be a good change.
Re:
I see that you are under the impression that no two people can come up with the same code independently. This false assumption breaks your entire theory.
How do you know you didn’t recreate the same code as your competitors without seeing their code?
Re: Re:
ofcourse two people can come up with the same code independently. especially if they are implementing the same method to achive the same function.
if you ment two people coming up with the same method of implementation at the same time, yes, ofcourse that can happen.
but 1 or the other will be deemed first by the patent office, and legally that person is first,
first wins, no prize for second.
again, you dont patent the function, and you dont patent the implementation (code).
you patent A METHOD of achieving the function (method of implementation).
so in the end, in law, and reality there is not ‘same time, independent invention’ it’s a “NOT ALLOWED” state, one will be deemed to be first and the other not.
Re:
if it’s abolished it is no longer “MAY” or “MAY NOT”.
Therefore it would certainly be against the constitution.
The clause reads “The Congress shall have power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”
They could abolish patent law and still have the power to make it again. So no, it would not be unconstitutional.
source code is not in patents, because patents are the METHOD of achieving something, or a description of how they go about doing it..
the particulars, (like the specific code) does not matter, it is what you achieve with that code to achieve a specific result is what is patented.
You’re contradicting yourself. First you say it’s the method that’s patented, then you say it’s the result. The former is correct, the latter is not. With software, the “how” or method is the source or compiled code. The problem is that it’s possible to make software that uses the same method, but has completely different looking source code, so a non-expert would not be able to tell if they’re the same. So using source code as the measure of a patent would be tricky. So, we’re left with using lawyer-speak, which isn’t working very well.
why, masnick dont you explain how patents work, you of anyone here should KNOW THIS, so why not explain it to your lesser informed readers ??
Well that is you, so… why don’t you go do some research on your own time?
Re: Re:
so you are going to pick and choose what parts of the constitution you want applied, and what not to use, when you want for however you want.. !!!!!! HAHAHAHAHA..
Do you even understand what your saying ??
You’re contradicting yourself. First you say it’s the method that’s patented, then you say it’s the result.
yes, I know that might confuse you, lets say then it’s the result by that method.
“a method for making car tyre rubber from sea water”.
would result in a car tyre (cant patent the wheel), but the result by that method is a car tyre, the method is patented, not the tyre.. get it yet ?
Re: Re:
The problem is that it’s possible to make software that uses the same method, but has completely different looking source code,
EXACTLY, and is why software is not required, or included in patents, but THE METHOD IS !!!
That means it does not matter what the software looks like, it is allowed to look completly different, even written in different languages, I does not matter.
what is the subject of the patent is the METHOD, not the implementation of the function under the patent.
you dont patent the function, you dont patent the implementation, you patent A METHOD to implement a function.
not the implementation, (the code and h/w config)
not the function (what the implementation does)
but “A METHOD” one possible way to achieve the implemtation of the function.
if you consider rubber from sea water, and car tyres..
you do not patent rubber, or tyres for cars, you patent a method of (implementation) of converting sea water to rubber for the function of car tyres.
in software, it might be
“A method for for raytracing graphic images and their manipulation”.
the patent application would include flow diagrams, possibly logic diagrams, explainations of functions and so on.
no code, because the method is language and cpu neutral, it might be in any computer code, or cpu (with the necessary capabilities)..
you dont patent raytracing, or displaying graphics, or how you might implement it with specific hardware (cpu specific), you simply provide A METHOD to achieve the function..
not the function, and not the implementation of the function, but A method to achive the function.
that locks no one out from inventing their own method of raytracing, you could, I could, and because methods allready exist does not stop me from achieving the same function my own way.
all you cant do is use that specific method, you have to develop your own method, if you cant and want that function, you pay the person who can for it. everyone is happy..
Re:
I perceive you are the one who needs the explanation, AC.
If I had invented a new material, I would demonstrate it to potential investors and patent examiners in the form of a raw sample, not a full size finished product.
Re: Re:
PT your a bit slow, I did not invent a new material, rubber is not new, nor are car tyres, it would not be necessary to demonstrate to examiners what rubber for car tyes does?? THEY ALLREADY KNOW..
you show them that your new method is capable of producing the rubber for car tyres, you might take some normal rubber and some of your’s and say “see they are exactly the same”.
but you might as well just say that, in your applications,
“produces rubber with the same qualities and properties are car tyre rubber manufactured by other methods”.
most people would understand that and not require to see samples.
basically IT’S NOT A NEW MATERIAL.. dont you get that !!
its a new method of making an old material, you dont patent ‘rubber’, you patent a method of producing the rubber or the tyre or whatever it is..
why cant you understand that ??
Re: Re:
PT your a bit slow, I did not invent a new material, rubber is not new, nor are car tyres, it would not be necessary to demonstrate to examiners what rubber for car tyes does?? THEY ALLREADY KNOW..
you show them that your new method is capable of producing the rubber for car tyres, you might take some normal rubber and some of your’s and say “see they are exactly the same”.
but you might as well just say that, in your applications,
“produces rubber with the same qualities and properties are car tyre rubber manufactured by other methods”.
most people would understand that and not require to see samples.
basically IT’S NOT A NEW MATERIAL.. dont you get that !!
its a new method of making an old material, you dont patent ‘rubber’, you patent a method of producing the rubber or the tyre or whatever it is..
why cant you understand that ??
This is a poison pill for walled gardens
If Stallman gets his wish, patents will only be leveraged on dedicated devices intended to set up walled content gardens; this will, of course, drive big corporations more forcefully toward the walled garden approach, so they can ‘protect their IP’ — this is no great loss, since big corporations are already running in this direction as fast as they can, in order to achieve anticompetitive things like user lock-in. On the other hand, if general purpose computing is excepted, then there will be a much stronger business case for eschewing the walled garden approach, should any upstart competitors choose to go there.
Not a bad compromise; however, precisely because it seeks to turn general purpose computing into a place where competitors can flourish, there is no way the oligarchy will let this happen.
Here’s the way it works as far as I can tell: any proposed solution will either fundamentally fail to address the problem, in which case it has a chance of being accepted, or else it will actually address, in which case, short of a far-reaching democratic revolution in the West, it is sure to fail.
Patent actual INVENTIONS!
Umm… so…
Presumably the METHOD you used to create a tyre out of seawater would be implemented by a MACHINE of some sort, otherwise known as an INVENTION?
So you can’t patent the invention of the wheel, but you can patent the invention of the MACHINE that the world has never seen before, which allows you to concert seawater to rubber.
Unless your using magic, which of course is kind of made up in your head, a but like patenting a METHOD really in that it’s also in your head but you don’t have to make any effort to invent anything! Brilliant!
Troll harder.
Patent actual INVENTIONS!
Concert = convert
but = bit
Damn Android tablet autocorrect!
Re:
Sounds like a problem with the legislative process rather than a problem with using carve-outs themselves.
Re:
No, clean room type engineering ensures you can achieve the same results without knowing if your method is different or not and if there was a universal independent invention defense that’s all you’d need but there isn’t.
Re: Re:
and if you find your method is the same, you (like it or not) are in breach of his patent, he was first, you’ll find that out when you go to patent your method, do you patent search, say “SHIT”, and try again, or license it.
you invent something then see if it’s allready patented, if so, your too late, if not you file.
the patent system is a “first in, no prize for second” game.
That is the basic rule.
because in reality there is no such thing as “clean room” engineering.
you have to have basic knowledge, and some solutions will because more apparent than others, especially if you have been exposed to it in the past.
(programmers have to learn how to program), and there are standard methods used in learning how to program, or design electronics.
So then you have to refer to rule no.1
“First wins, no prize for second”
that is why there is also no ‘independent invention’ first wins !!! no tie’s.
you implement most methods (especially software) not knowing if the method is different or not to patented methods (in my line of work, systems engineering).
you dont do you patent search before you invent something, you invent something, and in the hope that you are the first, you conduct the patent search, which is part of the patent application process (big part).
Re: Re: Re:
that is why there is also no ‘independent invention’ first wins !
You’re basically saying there’s no independent invention defense because there’s no independent invention defense.
Re: Re: Re: Re:
no there is an independent DEFENSE, but it’s a defense not a fact, if you successfully defend that argument, you win, if you dont you lose.
and so what, it’s the first to file that wins, that is what the court needs to determine. how many court ruling do you know of where the court has ruled both methods where invented independently and exactly the same time ? do you know of any ?? where they issued the patent rights to both parties equally ??
Re: Re: Re:2 Re:
no there is an independent DEFENSE, but it’s a defense not a fact
No, there is no independent invention defense in the US.
and so what, it’s the first to file that wins, that is what the court needs to determine.
Right… because there’s no independent invention defense.
Re: Re: Re:3 Re:
thanks for that, I assumed by the amount Masnick goes on about it, that it was a defense in the US, but if it is not, there is a very good reason for it, as you were..
there’s no independent invention, (defense or reality).
one is either first to file or not,
Re:
So you agree that “MAY NOT” is acceptable but find some kind of semantic reason why ‘abolish’ is different from simply electing to “MAY NOT?” Those are some impressive mental backflips just to insist that something hypothetical that clearly doesn’t have a chance in hell of actually happening in today’s political climate is unconstitutional.
Re: Re:
because it takes away the “MAY” part, you lose the ability to make a choice. thats not going to fly, trying to take power away from someone with it. (or a constitution).
it is a power to be able to choose ‘yes’ or “no”, not just no..
you abolish something, means it’s always NO, abolish alcahol, does not mean you have a choice, it means NO, NONE.
You honestly cant see the difference ??
Re: Re: Re:
it is a power to be able to choose ‘yes’ or “no”, not just no..
Correct, and also not just yes. Congress can choose to enact patent law, or not.
you abolish something, means it’s always NO, abolish alcahol, does not mean you have a choice, it means NO, NONE.
Right. Repeal patent law and then there would be NONE. In what way does that take away Congress’ power to enact patent law?
Re: Re: Re: Re:
because those laws would not exist to enact.
the exaisting patent laws allow someone to act upon those laws, it give power to the people to call upon those laws.
to repeal a law, means to take away the power to act upon patent laws, therefore there is no mechanism to act at all, and no descresion to act or not.
if you repeal the laws on say speeding, you will eliminate speedings crimes to zero, (no laws to break), but you have no power to act if you want to..
you cannot stop someone from speeding, as they are breaking no laws. you’ve lost power and protection. It is generally the case that a bad law is better than no law at all.
so start thinking about a viable alternative, that will be acceptable by the majority and legally correct and complete, and that takes regards to your constitution, and propose it.
but to just say “repeal patent law” is a joke right ?? you cant be serious !
it would be good to start by trying to understand the system yourself, what a patent is, how one is applied for and what has to be done to create and file a successful patent..
until you ‘get that’ in your head, you dont have a chance, if you believe that a patent, is a ‘function’ like CR/LF your wrong, and you have a poor understanding of what a patent is..
read a few, find out for yourself, dont take my word for it, do your own research, find out the real facts, not just the ‘facts’ that masnick would have you believe. He should know better, (probably does), that makes it ever worse !!
Re: Re: Re:2 Re:
I really don’t know what the issue here is with your understanding of the patents clause. Let’s take a simple analogy. Let’s say I have a document that says I am allowed to turn on the light switch. If I choose not to turn on the light switch, does that mean the document is null and void, and I’m not allowed to flip the switch?
If you answer yes, I am done talking to you, because I honestly don’t know how to communicate with you.
If you answer no, then can you see this is exactly the same situation with patent law? The Constitution vests in Congress the power to create patent law. Choosing not to create patent laws (or repeal the ones we have) would in no way void that power.
If that’s not working for you, maybe another analogy. The US has the power to nuke Tehran off the planet. I’m not saying it would be legal, but the power is clearly there. If the US chooses not to exercise that power, would you say that means the power doesn’t exist?
so start thinking about a viable alternative, that will be acceptable by the majority and legally correct and complete, and that takes regards to your constitution, and propose it.
Sadly, I don’t think any solution that would fix the problem would be acceptable to Congress, and any legislation that could pass Congress would not solve the problems. I’m not all that interested in proposing practical but ineffective patent reforms. If you want to talk fantasy solutions though, let me know. That’s actually a more interesting topic.
This is a poison pill for walled gardens
Doesn’t this division assume the walled garden is somehow implemented in hardware? That’s not typically the case today. Apple is a famous walled garden for example and all of their mobile devices run on generally used computer hardware and it’s the software that locks the hardware rather than the other way around.
This is a poison pill for walled gardens
Walled gardens that aren’t ‘implemented in hardware’ will become so immediately, the moment Stallman gets his wish.