Most software is given freely or a licence is given under some conditions of the owner’s choosing. Copyright is usually the basis of the legal authority of the owner/creator to do this. If anyone follows the rules of the creator they can have a copy or make a copy. That is pretty much the way a lot of material protected by copyright is distributed. Software has a major difference, though. It needs maintenance. If you obtain the use of some software that becomes useless because some malware gets its number the thing is of very limited usefulness and you will want to pay less for it. By maintaining the software, the owner gets to charge a higher fee because the software will be useful longer.

Particularly software that runs on a limited variety of computer will have a limited use even if maintained. When machines that can run it disappear, so does its utility. The result is that the owner may maintain the software for some years and at some point cuts off support. No one minds too much if the software is binary and that hardware is no longer available. If the hardware is available but the length of time the software is useful on it is long enough it still is worthwhile paying for a licence and providing support. It is all part of the negotiation, either individually or as a market.

The present discontinuation of support for XP SP2 and Lose 2K has sparked many articles about what this means in particular for the fate of the free world/”7″/GNU/Linux. I found the article in the Washington Post interesting for a comment by SteveR1. The writer had two interesting ideas, not because I agreed/disagreed with them but because they fundamentally address issues that arise at end-of-support:

1. Software providers should sell/give an end-of-support service pack – a snapshot of the state of the software so the user will be able to bring the software back to that state as often as he needs/wants
2. Software at end-of-life should go into the public domain, meaning anyone should be able to copy/support the software if the owner chooses not to support it

The first idea is pretty reasonable. It even has the good aspect for the owner that he can wring the last drop of value from the software by selling that final snapshot. Only an owner who is anxious to force an upgrade could disagree with this. Copyright should not be able to provide such leverage, so SteveR1 has a second rule: at end-of-life the software should become public domain. This is quite a bit more controversial except the owner is forswearing further value by discontinuing support anyway. Copyright does not/should not guarantee value for the next work, only the present work. Of course supporting software does imply some copying which is exclusive to the owner so giving abandoned software to the public domain would permit the necessary copying. Other media do not need these tweaks because the goods are too ephemeral (performance) or too enduring (books do not need maintenance by the owner of the work). Software because it requires maintenance to maintain value does.

To justify changing the rules for software it would likely require courts or legislators to accept that not following these rules would be an abuse of copyright for software. Nothing forces an owner of a work to permit copying. On the other hand software does have the leverage other works do not in requiring maintenance. This reduces the period of value greatly if not maintained, thwarting copyright in any event, and, because software is used repeatedly, users become dependent on it and pressured to obtain the next version. It would make software more comparable to other media to require maintenance or donation to the public domain if support is retired.

It may not really be important to adopt these two rules if current prices are driven by market forces and not monopoly. Changing the rules might only change the prices. In the case of monopoly the owner of the software breaks even in a very short period of time compared to the authour of a book who may need income from several books in a year to survive. Software that makes a million sales likely has more than broken even in a year. Viewing copyright as a motivator for creation, is there really any increase in motivation after the first $billion? Operating systems could be different as no one expects to make a modern operating system in less than a few years these days. Further, operating systems imply some level of monopoly/lock-in because the user has to invest in acquiring apps and configuring the operating system so copyright may be seen as a compound monopoly, one for the platform and one for the software. SteveR1′s rules might apply especially well to the operating system, limiting the monopoly on platform.

I am almost overwhelmed by all the news coming this week: XP clinging for life in business, a post-Bilski denial of a software-patent, nearly half of the world using XP SP 2 which is to be killed shortly, death of KIN, and M$ going all-in for the cloud… I had a vision of a chaotic battlefield with outposts of users of that other OS fighting for survival whilst users of GNU/Linux enjoy the good life. However, I am not a graphic artist so I will have to describe my vision in words, thusly:
Scene 1, Hill XP – Sergeant Ghost and the survivors of his platoon are low on supplies, taking heavy fire from an enemy of vastly superior numbers and morale is sinking.

And so the battle for Hill XP ends, hushed up and drowned out by news of other campaigns and the magnificent accomplishments on Hill “7″. No one missed Ghost and his men. What’s a few casualties on a battlefield involving millions?

One of the first decisions post-Bilski has shot down an appeal of a rejected patent application by HP. The patent-examiner had rejected the patent on the grounds of prior art (It’s mostly AND applied to rules for passing data…) but the appeal-board rejected the claims on the grounds of non-patentability:
” The subject matter of claims permitted within 35 U.S.C. § 101 must be a machine, a manufacture, a process, or a composition of matter. Moreover, our reviewing court has stated that “[t]he four categories [of § 101] together describe the exclusive reach of patentable subject matter. If the claim covers material not found in any of the four statutory categories, that claim falls outside the plainly expressed scope of § 101 even if the subject matter is otherwise new and useful.” In re Nuijten, 500 F.3d 1346, 1354 (Fed. Cir. 2007); accord In re Ferguson, 558 F.3d 1359 (Fed. Cir. 2009). This latter case held that claims directed to a “paradigm” are nonstatutory under 35 U.S.C. § 101 as representing an abstract idea. Thus, a “signal” cannot be patentable subject matter because it is not within any of the four categories. In re Nuijten, 500 F.3d at 1357. Laws of nature, abstract ideas, and natural phenomena are excluded from patent protection. Diamond v. Diehr, 450 U.S. at 185. A claim that recites no more than software, logic or a data structure (i.e., an abstraction) does not fall within any statutory category. In re Warmerdam, 33 F.3d 1354, 1361 (Fed. Cir. 1994). Significantly, “Abstract software code is an idea without physical embodiment.” Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 449 (2007).
The unpatentability of abstract ideas was confirmed by the U.S. Supreme Court in Bilski v. Kappos, No. 08-964, 2010 WL 2555192 (June 28, 2010).
With this background in mind, all claims on appeal, claims 1-43, and 50, are rejected under 35 U.S.C. § 101 as being directed to nonstatutory subject matter. Consistent with our earlier noted invention statement from Appellants’ disclosed abstract, the disclosed and claimed invention is directed to software per se, abstract ideas, abstract concepts, and the like, including data per se, data items, data structures, usage rules, and the abstract intellectual processes associating them within the claims on appeal.
“

Note the reference to Bilski re:non-patentability of abstract things like software. While we would have liked a clear recipe from Bilski, these judges found it useful.

While I often disagree with Preston Gralla, he makes an observation that I missed: The announcement by M$ yesterday of continuing to allow “downgrades” to XP is not a brief phase but will run “throughout” the life-cycle of “7″. I had not bothered to read the announcement from M$…

If, indeed, M$ plans to extend the life of XP Pro until 2020, this is huge news. M$ has blinked. While colouring this matter as helping business migrate to “7″, it really means another decade of business using XP. Ten more years of XP means that OEMs will need to keep producing drivers for XP indefinitely. A whole new industry supporting legacy XP could arise. Is it even possible to run XP for ten more years without service packs??? The mind boggles.

Concerning GNU/Linux, the longer XP sticks around business, the more foreign the current releases from M$ will become. They will either have to fork their OS or eventually businesses running XP will migrate to MacOS or GNU/Linux because it will become easier to do that over time.

Is this a train wreck happening in slow motion? How do all the “partners” feel about M$ suddenly changing the game-plan? Enquiring minds would like to know.

It’s too late for M$ where I work. We have already made the move to GNU/Linux based on the current performance and susceptibility to malware of XP. “7″ did not fit in the budget. We can probably run ten years on our current hardware but with new acquisitions we have a sustainable hardware system.

UPDATE:SJVN has his say. Read the comments, too. Therein the question is raised about whether there will be another SP on XP and so on…