Article View: gnu.misc.discuss
Article #73509Re: Patents
From: Craig Burley
Date: Mon, 02 Sep 1991 20:24
Date: Mon, 02 Sep 1991 20:24
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34668 bytes
In article <9209@cactus.org> ritter@cactus.org (Terry Ritter) writes: In article <BURLEY.91Sep1202411@churchy.gnu.ai.mit.edu> burley@churchy.gnu.ai.mit.edu (Craig Burley) says: > In fact the defense of patents that goes "I believe in protecting >intellectual property" really is a defense of the abolishment of all >patents. The patent system serves to RESTRICT intellectual property. Nah. The patent system serves to provide free market ECONOMIC SUPPORT for the development and publication of new inventions. The usefulness of this idea may not be apparent if you have been living in the Soviet Union, Eastern Europe, or have never had to make research pay for itself. Both of us are right; the patent system serves to provide incentive by restricting intellectual property. I've never denied this, and I support the patent system in general, as my post made clear, I believe. But there is the fact that the patent system is less intended to provide incentive for development than for publishing the details of an invention -- from what research I've done, it doesn't seem that patents were intended as a means to encourage development, just publication. It was assumed development would happen either way, which is in fact generally what happens today -- however, then as now, the danger was seen in having too many important processes kept secret by their owners and taken to their deathbeds, and in not providing a way for people to build on top of them by examining how they work. This is important in many fields, but has not yet been shown to be needed in the field of computer software. I've never heard of anyone discovering a new approach to something (inventing one) by first reading a software patent and saying "aha, then if I add <x> to it...Eureka!" and I doubt I ever will. Even if it happens once or twice, the other side of the coin, the huge cost involved in turning software creation into 1% development, 40% search for what is patentable in the development, and 59% search of existing patents to avoid them far outweighs any occasional positive result from patenting software (or algorithms, probably the more correct term as someone else pointed out). The main difference between computer software and other fields that I know of is that computer software is the first field in which mechanisms in the field itself are very likely, if not now, in the near future, to invent patented or patentable applications on their own. Since most software patents (that I know of) are not single "eureka!" ideas but simply combinations of well-known ideas (XOR with cursor management; avoiding recomputing expensive functions by saving their temporarily unneeded output combined with windowing => backing store; keeping numbers in a canonical byte ordering combined with putting numbers in files designed to port between machines; and so on), it is becoming increasingly likely that optimizing compiler technology will be capable of violating/inventing a patent given a fairly ordinary description of a problem (I already know how to build such a system, but I can't describe it and must keep it secret until software patents are abolished; in the meantime, if I manage to build it, at least I can use it myself and probably make a small fortune off of it). The result is that, given that you've written a modest-sized application in, say, C++ or Smalltalk or Eiffel (or any other modern high-level language, even non-procedural ones, like Prolog, ML, whatever), and compiled it using the latest global-optimization technology (as of, say, 1995), whose job is it to check every line of assembly-code output for possible patent violations and for possible patentable ideas that aren't represented alone in the source code, but in the source code + the optimizer + the canonical libraries? That is a mammoth undertaking even now with our fairly primitive optimizers and on a reasonably small program. Right now I know of a personal-computer-based page-layout program whose internal file format violates a software patent. Who is responsible for this violation if the coders simply used one OO library that provided a means for communicating between different machines' memories in conjunction with another that provided a means for saving memory contents in disk files, and they had no idea that canonical byte-ordering was a solution the first library used (not a patent violation, since the bytes aren't saved to disk file by the library) and the second library dutifully implemented in a disk file (not a patent violation to copy arbitrary data to a disk file from memory)? But the result is a product that uses canonical byte-ordering in files designed to be readable on any of several platforms, and thus violates a patent. In this case, I suspect the coders didn't use libraries but wrote the code directly -- but the scenario I illustrate is very likely, and the coders of the end-user product are capable of having no idea a patent violation has taken place (implemented by the compiler and linker), especially when the internals of how the libraries work are hidden from their view! My point is that no matter how valuable software patents may SEEM to be, their implementation is entirely impractical. >In case it isn't clear how this is the case, I'll offer an analogy. You >decide to build a house, sit down and design it, order the materials, and >build it. It is your property, of course. Then one day, a year or so after >you've lived in it, somebody comes along and says you have to pay them >$50,000 per year to continue living in the house or else destroy it and build >another, different house (or at least change it significantly), and even >then you still owe them $50K for the first year you lived in it. >The reasoning? They happened to have designed and built a similar house >one month before you did, and filed the design with the "Bureau of >Housing Property". Not quite. They must have designed a built a house with TOTALLY NEW features. They described the features formally, so that anyone in the building field could reproduce them. They formally argued that each feature was new, never before formally described. A skeptical examiner finally allowed some of the claims, after eliminating some, and downgrading others. The full, open description of the inventions became available to anyone with $1.50 at the time the patent took effect. Meanwhile, the ability to continue living in your own house without rebuilding it is entirely in the hands of someone else who happened to have the same ideas you had, but spent $$ and time going through a formal, legal process, while you just built the house? Why should you be denied use of your own property? Remember I do support the idea of patents in general, which can and do prevent you from, say, selling the plans to your house even though it's your own design because somebody else patented it first. Lets have another analogy: As a home builder, you decide to benefit society by building a totally new kind of house, unlike any ever built before. (We know beforehand that the house will not sell unless SOMEONE considers it a specific benefit.) You invest time, effort, and money creating and testing new features, wholly new systems unlike any seen before. Some of these work out, some don't, and some require more development. Eventually, you work them out, and so build a house and sell it. Then you find that any turkey that has access to that house can compete with you, even though they spent neither time nor effort in development. Question: Will you continue to do development? Answer: Yes, as someone else has pointed out, and it happens all the time. Similarly, fonts cannot be copyrighted, but we have a plethora of beautiful ones available to us and more are being designed all the time. Just as the computerized instructions for rendering a font are copyrightable, so would be a text describing how to build a particular design for a house, but in neither case is the basic idea protected in any way. The problem with software/algorithms is that there is no reliable, fair, and relatively nonintrusive way to separate representation of an idea from its use. Do we, as a society, wish to discourage new development? Would we, as a society, prefer that every truly innovative house be sold under a non-disclosure agreement? It's not a problem, and house designs are not patentable. Thanks for arguing this line! Patents are NOT about AN INDIVIDUAL building something for his or her own use. Although patents do APPLY to individuals, they are almost never APPLIED to individuals. Patents are ECONOMIC tools to recover R&D expenses, or to force the rewards to a particular company who did, supported, or bought the R&D results. Patents are about manufacturing, sales, and distribution, NOT individual use. But in the free-software market, individual development IS critical and is being targeted. An individual wrote compress; an individual wrote tar; and so on. Anyway, patents are NOT economic tools to recover R&D expenses, or at least not primarily so; patents are tools to encourage publication of the fruits of R&D expenses. Please keep this important difference in mind. There are far better mechanisms for encouraging R&D itself -- look at Japan and at various U.S. government programs that do this. Some of them even insist that the resulting techniques be placed in the public domain (i.e. not patented or copyrighted) or assigned to the government! Patents are also NOT about fairness. Law itself is not necessarily fair; innocent people do get convicted. But if we are to throw out Law, we must accept the results; we accept an imperfect society under law for the lack of anything better. If we throw out patents, we must accept that there will be consequences due to the changed economic environment. Without patents, many inventions simply will not be applied in practice, because there will be no way to prevent a large company from snapping up the idea and using their superior resources to dominate the market. As an engineer, I have actually heard this argument voiced a number of times as a reason to drop a particular line of development. Innocent people getting convicted is something the law bends over backwards to avoid in a case where there is a .001% chance that a particular fellow is not a serial killer and is thereby released on what is commonly called a technicality. If we are so willing to avoid unjust conviction in a heinous case, why do you suggest it is ok for someone to be convicted or otherwise taken for all the money he or she has simply because they wrote and distributed compress or X? And as someone else pointed out, I've never suggested we throw out Law; just useless, overly interpreted laws that were never intended by our Founding Fathers in the first place. Patents ARE about a deal with society: a limited-term monopoly in return for full public disclosure. 17 years may seem long when you are 20; but you will go through 4 or 5 of those periods serially in your life. It simply takes time to develop a market and business around a really new invention. Patents are one way that a free market economy encourages expensive development. Alternately, we could have the Government and/or Universities do our research and development . . . . Fine, but with software, I come up with 20 new patentable ideas for every 3 hours of typical programming, based on what the PTO has been awarding as patents. That also means I'm potentially violating 20 existing or in-progress (invisible to me) patents every 3 hours. That is why I cannot risk releasing or describing significant software myself while software patents exist, and I must count on the FSF or some other organization to release software that I write for me, and take on the risks themselves. Ultimately, and quite soon, the existence of software patents will force me and many other individual contributors (not to mention small companies) out of the field. I'm quite prepared for that, because it's quite likely. Not only can I not afford to scan all the assembled code I've produced (via compiler, Smalltalk, whatever) for possible patent violations, but I have no desire to. If society wants to slow the rate of software development down approximately five orders of magnitude, fine, I'll happily flip burgers at MacDonald's, or even more frightening to anyone who's heard me sing -- go into the music business! >Every software patent I've heard of or, so far, can conceive >of, is inherently published when its program is published. Wrong, wrong, wrong. In this case, "publication" is a technical term under law, and implies FULL OPEN DISCLOSURE of the invention. The vast majority of software is published as OBJECT CODE ONLY; execution of that code does NOT disclose anything about how it WORKS, but only what it DOES. What something DOES is NOT a disclosure of HOW TO DO IT. It is this full open disclosure of HOW TO DO IT which is "publication" under patent law. Sure, you might get something out of a disassembly; but this is still not FULL OPEN DISCLOSURE. I have yet to need to look at any of the software patents I've heard about and yet I've known how they work for years (an exception being LZW compression, though the source code to compress fixed that problem for me in no time). On the other hand, I've tried to read the occasional posting of an actual software patent, and have yet to be able to make head or tails of one, even when I know what it really means. I'm not unique in this regard. With software, unlike other fields, the existence of the program is itself a description of how to do it. An executable image is an admittedly more obscure description than a source listing, but neither are as obscure as some of the software patents I've read. If I hand you a bucket of unrefined oil and you hand me gasoline, there's little I, as an individual, can do to divine your process of converting one to the other. Same if I hand you a C program and you hand me the assembler output, assuming I have no idea what to use the assembler output for. But when you hand me an executable image for the compiler and I can make assembler output out of C programs whenever I want, then it is easy for me, given a few decent tools, to discover the process. (Even if you hand me a refinery for oil to gasoline, discovering the actual process and understanding why it works is basically impossible for an individual even given decent tools.) That is one of the distinguishing characteristics of software. Moreover, one might assume that you think that normal software publication (that is, trade secret publication) is better for society than software patents. But the patented sections of software are always fully disclosed, may be studied, and may provide insight; some additional work may lead to other new, unpatented and useful techniques. In any instance where it can be shown that a patented-style publication is more informative and useful and build-upon-able ( :-) than releasing the source code or even the executable image and using a disassembler, I'll agree that, in that instance, patentability might well be preferrable. My point is that there are so few cases where this will be true compared to the huge number where it is provably not true, and little likelihood the continued patentability of software/algorithms will change this, that we might as well throw out software/algorithm patents and save ourselves the trouble. Just as the existence of a few non-software patents that were themselves published by virtue of the device being sold and the resulting patent being really unnecessary does not persuade me to throw out the patent mechanism entirely. I really get the impression you're not a computer programmer, or at least not a serious (or efficient) one. I can hardly keep up with the tiny percentage of technical journals I actually receive to get new ideas -- and most ideas I read I just ignore, figuring when I need them, I'll reinvent them anyway most of the time. Having all the software patents published to date available at my fingertips, even if I could use them and publish works based on them for free, would be of extremely little use to me -- why do I want this when I have to pay for using them? I get better ideas for free all the time, from my own inspiration, from reading journals, from talking to people. Software patents show no promise to anyone working in the field that I know of as a means for inspiring further ideas -- only as a means to secure financial reward for implementing ideas that are published anyway 99% of the time (and will continue to be, whatever happens with software patents). Show me someone who scans software patents for programming ideas and patents their own code and I'll show you someone for whom writing one line of code in a week is worthy of celebration. I've got better things to do, like writing GNU Fortran. (On the other hand, if I was doing hardware design, bioengineering, and suchlike, I'd be very grateful for patents -- you can work for years trying to make just one good idea workable. With software it usually takes a few seconds, or as long as it takes to type in the code and get it to compile, link, and run, so minimizing the search for the perfect idea is hardly important.) In contrast, trade secret publication does not inform anyone except those who happen to work in the corporation where it was designed, and any inventions in it will die when the software does (and almost ALL software eventually dies). This hardly seems in the interest of society. If you compare the lifetimes of various popular products in various different fields, I think you'll find that software dies so fast, it isn't worth worrying about patents for it. And, in any case, the whole point is that it is nearly impossible to succeed at keeping any released software's internal design secret, unles it is perceived as generally useless and therefore not worth disassembling. If I knew less about computers than I do, and thought indeed important secrets behind a popular program could be lost forever, I'd agree that patents were important to ensure publication, but that's not the case. In fact it amazes me how often totally useless or rarely sold software programs that attempt to keep their internals secret via various techniques (zapping debugger registers, copy protection, et cetera) are nevertheless hacked at by intrepid types who just want to know how they work -- and effectively published. This happens with games and such, and often they're more complex than "real" application programs! >If someone hands me unrefined oil and says "refine it", all >the genius in the world won't allow me simply to speak, write, or otherwise >communicate refined oil as output. Similarly, being handed a bunch of >chemicals won't allow me to make aspirin, and so on. Instead, while I must >use intellectual processes, I would have to resort to mechanical techniques >to accomplish the job. Thus, it is not a software patent. >However, if someone shows me a listing of C code and says "compile it", I >might well be able to write down the output of that code as, say, 68K or >i486 assembler, and in the process use, in effect, many currently patented >techniques, such as IBM's register coloring algorithm, that I may have made >up myself. Note that just because I use a mechanical technique -- pencil on >paper -- does not invalidate the premise, because the paper-scratching is >NOT the true output of the process, nor is the original listing of C code >the true input -- the listing _represents_ the input, as does my output, >whether these are in verbal, visual, or other form (braille, for example). Translation from one language to another is NOT what software patents are about; simply COMPILING patented code is NOT a violation of a patent described in that code. It is the RUNNING of the compiled code, the actual action of "refining information," which a patent protects. I was referring to the compiler itself violating patents; the compiled code itself is not at issue here in my example. So my point is that the act of my brain employing certain algorithms to compile code is itself a patent violation, in a sense -- or, if not, why should it become one if and when I reproduce my thought processes in an algorithmic description, which is what a computer program is? (If you're going to argue that humans don't really use algorithms, you're going to have to show how you'll prove that in a court of law to the satisfaction of everyone -- in other words, you're going to have to invoke essentially religious arguments in a secular court. Good luck.) Of course, RUNNING "your" compiler code, if parts of it are patented by others, COULD be a violation, but, again, patents are NOT ABOUT individual use; patents are about manufacturing, sales, and distribution. In this case, patents are about controlling the sales of a compiler which uses a patented technique, and all you have to do to be able to sell your compiler is to use a different, perhaps better, technique. Patents thus encourage you to improve upon the state of the art. To the extent that this is difficult, you must also acknowledge the importance to society of having the technique fully and openly disclosed for the next generation. Yes, but if my compiler uses a "better" technique that is just an optimization of a fundamental technique that happens to be patented, i.e. it is simply a transformation of the patented algorithm to one that is effectively identical, then either it still violates the patent OR software patents are useless in fact. (I.e. instead of XOR cursors, one can do b := 1-b for every bit in a cursor, which implements XOR using subtraction -- and how the hardware does that is its own business!) And as I suggest, I cannot risk publicizing my ideas for much better optimization and management of software programming because it is very likely they will violate 100s of trivial patents even if I tried to patent my five or so significant ones. Instead I must keep my ideas a personal secret, hopefully implement them in a useful computer program instead of just winging it in my own thinking, perhaps even use the resulting program to achieve personal wealth, and erase the program upon any threat of a search for patent violation in my own personal system (and instruct it must be erased along with all related notes when I die, so my estate won't be at risk for patent violations). On the other hand, if software patents are abolished, I can start publishing my ideas right away in whatever form they need to take at the time. Perhaps my ideas aren't really all that great, but are you willing to take that risk? If you are, then why argue FOR software patents in the first place? If not, then here's a case where software patents clearly PREVENT publication! As for the mental process of performing software functions, surely this is grasping at straws. The very fact that programming is difficult is an indication of how well our bio-minds follow instructions; the improvement is in building machines (and instructions to machines) which ACTUALLY follow instructions. Programming isn't at all difficult. I've programmed my own mind to do it quite well. Again, if I were to write a program that did what I know I already do in my own mind (and I could do a lot of that right now, I think), I'd be hit with lots of patent-violation lawsuits. I become a better programmer as I use consistent instructions I've learned are useful instead of just winging it all the time (which still, obviously, has its uses), and I'd like to publish what I've learned, but I can't take the risk in this society -- software patents basically mean I don't really own my own ways of doing things. Note this is not a boast that I've invented all these ideas on my own! We all do this to varying extents. A big reason patents were not to include "laws of nature" is that it was understood (correctly) to be impossible to practically determine who truly made the first observations about anything purely theoretical in sufficient cases to make the patentability of ideas worthwhile. We know Einstein discovered e=mc^2 and a few other cases, but vast portions of mankind's knowledge of theory of all types came from unidentifiable sources and we have all incorporated this knowledge in our own thought-patterns in various ways. Obviously we cannot be prevented from or taxed on using particular ideas in our own thoughts! Why should we be when we extend our own thought-processes to computers? Moreover, virtually any electronic device which produces information could be reduced to Boolean instructions which, in principle, could be performed mentally. This certainly includes computer CPU's themselves. Are computer CPU's NOT patentable hardware because a human could, IN PRINCIPLE (at a ten-millionth the speed and an error rate billions of times higher), perform "the same" operations? I think most people would say that a dividing line has been crossed here. Uh, if you can, via thought and abstractable communication alone, scan a keyboard, drive a display or printer, interpret and generate modem signals, store magnetic data on floppies, read/write/refresh dynamic RAM, then I very much would like to meet you in person!! You could replace a few expensive workstations I have around here.... The point is that the idea of a clock, an example of a device that produces information, is not patentable. However, a particular clock that drives a particular display is patentable, and rightly so, if the invention meets the usual requirements. There is even a design patent that can be awarded for a design element that is nonfunctional, as in the appearance of a clock face (say, for example, it uses Exacto knives for hands and is made by Exacto -- they can get a design patent on that aspect). But the transformation of the passage of time into information on what time it is is entirely algorithmic (if you allow that time itself is of an algorithmic nature, in that it is a law of nature), and thus not patentable -- until recently. >In summary, we should go back to the 1981-and-earlier standards for >patentability, and abolish software patents retroactively. Processes that >include software may still be patented, but use of the software (equations) >that is in the patent should not, by itself, ever constitute infringement. >(In other words, still permit patenting an overall process that happens >to involve a computer and a running, specialized program, but don't >prevent anyone else from using the special algorithms in that program when >they write their own. I doubt that there can ever be a consistent legal definition which would separate "software" from "hardware." "Software" is just the term we use to describe the practice of forming the instructions TO BE USED BY HARDWARE. Without hardware, software ALREADY does not infringe patents; patents are about the USE of software TO PERFORM HARDWARE ACTIONS. It is these actions which are patented. Then nobody who writes a program violates a patent, it is only those who actually run the program? Hardly. The developer running his/her own program to test it wouldn't violate by these standards, because one can use a patented technique for testing purposes and such (I forget the exact wording, but it means you can experiment with a patented technique without worry), unless he/she sold the results of those runs. But leave users holding the bag for actually running the program to get work done? Nobody who wants software patents will agree with you on this one! And yet this highlights one of the areas of uncertainty of software patents. With traditional guidelines for a patent, it was always sufficiently clear who was doing the violating -- with matter-transformation processes, somebody has to build and/or run a machine to transform the matter. With software, the program exists even when no machine exists to run it, and the machine ends up being of virtually no particular consequence. Other discussions in this newsgroup have (properly) chastized the idea of implementing patented algorithms in the source code, commenting them out with the comment "this is patented, so we can't ship it", then of course the user can uncomment the code and recompile -- this would be a great idea if patent violation occurred only when the technique was actually implemented in a running machine. It'd be fun watching AT&T scurry around trying to catch people in the midst of actually USING X -- or, more properly, overlapping windows, causing an overlapped window to update one way or another, than exposing the entire window, at which point the full backing-store implementation is finally executed! Given that a sales tax has just been instituted on certain media like cassette tape, DAT, and such, because someone MIGHT use it to pirate a recording (a tax I wholeheartedly object to -- I'm paying for someone else's piracy when I buy a tape, and the money goes not to government programs but to musicians I might not care about at all), I doubt you'll find anyone lining up behind your concept of what actions are patented -- except perhaps those of us who might see it as a feasible way of making software patents effectively useless. When you look at patents like IBM's register coloring patent, AT&T's backing store patent, and so on, you are really seeing that only an algorithm is being patented. I think the XOR-cursor might be an exception if it involves the appearance of the cursor as a key element -- but in that case, only the appearance of a cursor on a display should be eligible for protection, probably only design protection at that, and as such would be, in my opinion, clearly too common, obvious, and trivial to qualify. But the algorithms are patented, and yet the inputs/outputs of any system employing them need not betray whether they use those algorithms. On the other hand, file formats are apparently patented, as in the case of using a canonical byte-ordering in a file to handle the difference between big-endian and little-endian machines, and yet clearly this is an algorithm given a domain that includes two or more machine architectures and requires no hardware description to support the patent (whether it uses hardware description is unimportant here). Preventing the application of patents to software would imply that anyone who wished to get around a patent on (for example) a new chip (hardware) could try to reproduce the design in software (i.e., MICROCODE, in a fast single-chip processor) and thus avoid the hardware patent. In this way, eliminating software patents must inherently damage protection for hardware logic designs (including computer hardware). Such protection has been a basis for the development of the computer industry, and elimination of such protection could have extremely serious consequences far beyond you not being able to use your favorite technique in your compiler. Wrong, since all computer hardware innovation up to this point has not required software patents per se to be protected! Again, software is not, by itself, going to be able to drive a display or scan a keyboard; the chip design that does these things is indeed hardware and thus patentable, inclusive of any software that is part of the patented process. But the software (algorithm) by itself should not be patentable and should be usable by itself without risking a patent violation. I discussed a number of these issues in my article "The Politics of Software Patents" in the May-June 1991 issue of Midnight Engineering. It is amazing to me that you can have written an article for a publication (admittedly one I've never heard of), presumably done all the necessary research, and yet state that "[software patents have] been a basis for the development of the computer industry" -- my understanding based on only sketchy research and reading these newsgroups (and being alive a certain number of years) is that software patents as we have been discussing them have existed no longer than around 10 years, and probably not (ab)used as software-only patents for that long, yet the computer industry, up to and including development of microprocessors and such, was in full swing by 1981. Anyway, if you are willing to send me a copy of your article, which probably is more coherent than either of us has been in this forum, I'll send you my address. (Or, if you have it online, just email it to me, please!) I'd love to read it and see if I can gain any further insight into your arguments for software patents, either to convince me or to suggest ways of convincing you to change your position. -- James Craig Burley, Software Craftsperson burley@gnu.ai.mit.edu
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<1991Aug26.210003.29553@sq.sq.com> <1991Aug31.184217.20959@aber.ac.uk> <BURLEY.91Sep1202411@churchy.gnu.ai.mit.edu> <9209@cactus.org>Show Full Headers
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X-Google-Language: ENGLISH,ASCII-7-bit X-Google-Thread: 1025b4,9434f7b17f215464 X-Google-Attributes: gid1025b4,public X-Google-ArrivalTime: 1991-09-02 13:53:32 PST Path: arc1-ca.pugleaf.net!gmdzi!unido!mcsun!uunet!iggy.GW.Vitalink.COM!widener!bu.edu!ai-lab!life!burley From: burley@churchy.gnu.ai.mit.edu (Craig Burley) Newsgroups: gnu.misc.discuss Subject: Re: Patents Message-ID: <BURLEY.91Sep2162405@churchy.gnu.ai.mit.edu> Date: 2 Sep 91 20:24:05 GMT References: <1991Aug26.210003.29553@sq.sq.com> <1991Aug31.184217.20959@aber.ac.uk> <BURLEY.91Sep1202411@churchy.gnu.ai.mit.edu> <9209@cactus.org> Sender: news@ai.mit.edu Organization: Free Software Foundation 545 Tech Square Cambridge, MA 02139 Lines: 525 In-reply-to: ritter@cactus.org's message of 2 Sep 91 08:29:14 GMT