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ideas
Feb 08, 2008
Quote of the day
Computer programming languages are interesting in their own right, as they represent humanity's attempts to communicate our ideas to our machines.
Nov 30, 2006
On Free Speech, Ideas and Patents
An idea is “a specific thought or concept that arises in the mind of a person as a result of thinking” (en.wikipedia.org/wiki/Idea)
# (Idee) (to be distinguished from "idea" - Vorstellung) "The Idea is truth in itself and for itself — the absolute unity of the notion and objectivity. Its 'ideal' content is nothing but the notion in its detailed terms: its 'real' content is only the exhibition which the notion gives itself in the form of external existence, while yet, by enclosing this shape in its ideality, it keeps it in its power, and so keeps itself in it." Logic § 213.
www.class.uidaho.edu/mickelsen/texts/Hegel%20Glossary.htm
[L:97] In the Logic, defined as "a concept of reason, whose object can be met with nowhere in experience", and thus cannot be known by us; Kant suggests, however, that such ideas "serve to guide the understanding through reason in respect of experience" by "using to their greatest perfection" the rules of reason. ...
www.texttribe.com/text/kant_glossary.htm
Supreme Court Justice Oliver Wendell Holmes in Abrams v. U.S.:
“[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-- that the best test of truth is is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.”
“The [free speech] rulebook is the Marquess of Queensbury rules applied to speech instead of boxing; it is the official declaration that government must not reach down and push forward, or restrain, any of the players on the field.” (http://www.spectacle.org/296/rulebk.html)
ICCPR Article 19(2):
“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
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Nov 01, 2006
Strict Construction and Judicial Activism
Strict constructionism is:
"interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions"
The article, in pointing out that the term has no real meaning suggests that it could be taken to mean:
- textualism - grounding all interpretations in the text of the law/legislation
- literalism - literal rather than purposive interpretation
- originalism - looking at the original intention or original meaning of the framers
- a presumption of constitutionality (legality)
Judicial activism is defined as being either:
- Non-abstention - deciding cases whereas passive judges abstain
- Exercise of the power of judicial review
- Incorrect exercise of he power of judicial review
Now for the conclusion:
This post has had two goals. The first is to convince you that "strict construction" and "judicial activism" are simply not very useful as theory terms for academic constitutional lawyers. The second is to illustrate the importance of clear explication of constitutional concepts. Constitutional theory is a value-laden activity. Debates about positions in constitutional theory are frequently extensions of debates in moral and political theory generally. For that reason, it is very important for constitutional theorists to be very careful about their use of language.
A very similar conclusion to that which I would reach in the patentability debate. It is a value-laden activity, which frequently involves extensions of policy debates generally. This requires a commitment by judges and academics generally to "clear explication" of underlying concepts.
Sep 25, 2006
Marx: Historical Tendency of Capitalist Accumulation
- "Private property, as the antithesis to social, collective property, exists only where the means of labor and the external conditions of labor belong to private individuals.... The private property of the laborer in his means of production is the foundation of petty industry, whether agricultural, manufacturing, or both; petty industry, again, is an essential condition for the development of social production and of the free individuality of the laborer himself. Of course, this petty mode of production exists also under slavery, serfdom, and other states of dependence. But it flourishes, it lets loose its whole energy, it attains its adequate classical form, only where the laborer is the private owner of his own means of labor set in action by himself: the peasant of the land which he cultivates, the artisan of the tool which he handles as a virtuoso. This mode of production pre-supposes parcelling of the soil and scattering of the other means of production. As it excludes the concentration of these means of production, so also it excludes co-operation, division of labor within each separate process of production, the control over, and the productive application of the forces of Nature by society, and the free development of the social productive powers."
- "[T]he transformation of the individualized and scattered means of production into socially concentrated ones, of the pigmy property of the many into the huge property of the few, the expropriation of the great mass of the people from the soil, from the means of subsistence, and from the means of labor, this fearful and painful expropriation of the mass of the people forms the prelude to the history of capital".
- "Along with the constantly diminishing number of the magnates of capital, who usurp and monopolize all advantages of this process of transformation, grows the mass of misery, oppression, slavery, degradation, exploitation; but with this too grows the revolt of the working-class, a class always increasing in numbers, and disciplined, united, organized by the very mechanism of the process of capitalist production itself."
Sep 19, 2006
A lot to take in
Sep 18, 2006
Kirby on the public interest and amicus curiae
In Attorney-General (Cth) v Breckler & Ors (1999) 197 CLR 83, the High Court also recognised that specialist organisations will have a broad interest and capacity to offer assistance (per Kirby J at 134):
[i]n many proceedings, especially in recent years, [the High Court] has granted leave to governmental and non-governmental organisations to make submissions as amici curiae where their interests have suggested a capacity to provide submissions from a specialised viewpoint, an industry perspective or in the public interest.
A choice quote
May 01, 2005
Trade Secrets
Having your cake and eating it too
I've been doing a little bit of digging into trade secrets and the importance of them to software. Then it hit me - there is a real overlap issue between patents and trade secrets for software. The inspiration for this idea came from this page, combined with what I read about the problems of overlapping protection in the "mutant copyrights and backdoor patents" but I think the idea is fairly original...
The idea is that the source code of software is generally kept secret, and is hence a trade secret unless disclosed (that is then, for all proprietary software). This means that when proprietary software vendors apply for patents, they not only get the statutory monopoly period associated with the patent, but they also get to keep the source code monopoly as a trade secret in perpetuity. Thus the usual bargain wherein the public get the benefit of having useful information released into the public domain at the end of the patent monopoly period is actually not happening completely, because the implementation which gave rise to the patent is still protected by trade secret law.
This gives real strength to the proposition that the disclosure requirement for software patents should require a disclosure of source code of the implementation of the patented algorithm.
Mar 21, 2005
View from the Sidelines
I had an idea on the weekend about an idea for an article which would look at the history of IP protection in software a little more closely. The idea would be to talk about the way in which Australia has generally relied on the US to develop Intellectual Property law and then has incorporated it into Australian law. It would be a chance for a comparative analysis of the law across the regimes in the two jurisdictions, comparing the timelines, and then talking about the source of the differences (for example the contention by Andrew Christie as to how Australia has the most liberal test in the world for patentability of algorithms).
I could also talk about how this reliance on other jurisdictions to do the hard work has resulted ina failure of Australian legislatures to consider the needs of the Australian software industry. in any real detail. This segways into a discussion of the Free Trade Agreement as the most recent example of a failure to consider the industry's needs. It would also be a good way to review the cases.
