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On Software Patent Lawsuits Against OSS
Posted by
Zonk
on Fri Jun 30, 2006 08:57 AM
from the bad-day-bad-day dept.
from the bad-day-bad-day dept.
Bruce Perens writes "We've warned you for a decade. Now the monster has finally arrived: patent holders are filing suit against OSS developers." From the article: "We should not be confident that we will continue to have the right to use and develop Open Source software. A coordinated patent attack by a few companies, or even one large company, could completely destroy Open Source in the United States and cripple it in other nations. Funds and patent portfolios that have been established to help defend Open Source would not be sufficient to defend it. Only legislative changes to the patent system can fully protect Open Source and maintain it as a viable source of innovation for our future."
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[+]
Copyright Protection Problems For OSS Project 390 comments
An anonymous reader writes "There's a federal case in the Northern District of California where copyright for open source is being challenged. The free software project JMRI discovered that a commercial company was
using some of their files in a product, in violation of the license. They added a copyright claim to an ongoing legal action about cybersquatting, software patent abuse, etc. The patent case was covered on Slashdot back in June but the copyright part is new. The other side came back with an argument that copyright law didn't apply, simply because they software was 'being given away for free.'"
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Protect Innovation (Score:5, Insightful)
Re:Protect Innovation (Score:5, Insightful)
How many such cases have happened in the last 5-10 years?
Parent
Re:Protect Innovation (Score:4, Informative)
Parent
Re:Protect Innovation (Score:4, Insightful)
Yeah, it's great when little guys like the University of California are able to stand up against big companies that steal their totally non-obvious concepts that nobody else had previously implemented.
Parent
Re:Protect Innovation (Score:5, Insightful)
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Re:Protect Innovation (Score:5, Insightful)
Bruce
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Re:Turn it around... (Score:5, Interesting)
Bruce
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Re:Turn it around... (Score:4, Insightful)
Software patents are really only useful to act as a roadblock to other companies, and in particular for patent trolls - they don't stop a truly motivated competitor from replicating your software product in a cleanroom environment, as long as they can code around the patents, which should virtually always be possible.
"Making money off the finished work" in this scenario would imply taking the copyrighted software and illegally selling it - copyright protection is more than enough to stop this. Patent protection is simply unnecessary for a thriving software business, as long as it is reasonably diligent in its use of copyright and trade secret protection.
Parent
Patent Reform (Score:3, Informative)
Re:Patent Reform (Score:5, Informative)
It's a theory of mine that linking to a reputable site, such as Wikipedia [wikipedia.org] will get any post modded informative, even if the link is completely irrelevant.
Parent
Re:Patent Reform (Score:5, Informative)
You may be right.
Chicken [wikipedia.org] (gallus gallus domesticus).
Parent
Not in Europe! (Score:3, Insightful)
Just saying.
Interesting insights on legal landscape in Europe (Score:5, Informative)
Parent
Anonymous development model (Score:5, Interesting)
If the big fears come to pass on this, perhaps an anonymous development model could be made using currently-developing P2P encryption models. Regardless of if software patents are a political problem that may or not be fixed in the long run - the idea that a good person CAN ethically have need to become anonymous in their development of software may change the debate. Right now, the public concept of anonymous development is left to virus developers and other black-hat-types - it would be interesting if your child's educational software, or in this case model railroad software had to be developed behind the veil of secrecy.
Ryan Fenton
Re:Ah, it's all clear to me now (Score:4, Interesting)
If you'd like to learn more about this, read The Emerging Economic Paradigm of Open Source [perens.com]
And regarding the gratification from writing a "duplicate", it doesn't work that way. Consider Firefox, or Apache: not duplicates of anything, although there are other products in the category. Or Linux: it works the way the POSIX standard says it should, so it shares a common interface with Unix. But everything else about it is different.
Thanks
Bruce
Parent
So the end result is that... (Score:5, Insightful)
All of the Open Source software will be written outside of the US where US patent law doesn't hold. And as Open Source people aren't SELLING the software into the US its going to be tough to sue them.
This would of course be bad news until we think that Linus and Alan Cox aren't from the US anyway and Open Source is really taking off in European Govs.
Come on folks, move to Europe, claim political asylum.
China can collapse the US economy at any time (Score:5, Interesting)
A Chinese boycott of sales to America is the least of their power.
China is the main financier of the American government's debt. Yes, that $400 to $500 billion Baby Bush has put us in the hole for fighting his family's personal vindetta in Iraq at America's expense (both in tax dollars and human lives).
If China gets really annoyed with us, they can simply stop buying US Bonds and put the government (and the economy) into freefall overnight. Yes, thanks to Bush's unprecedented deficit China could engineer the complete collapse of our economy, and probably our ability to govern, that easily.
If they decide they don't want to go that far, they could do anything from a boycot more limited than you describe (refuse to export some product we really need and watch our economy spasm without actually collapsing), to invading and annexing Taiwan (goodbye affordable computing for the next 5-10 years).
Really, Bush has put us so far into hawk to the Chinese that they really can call the shots, anytime they like. They just haven't seen any advantage in doing so so blatently or crassly
But with America's current diplomatic and strategic incompetence, one is forced to wonder how much longer it will be, and conclude "probably not much."
Parent
Revolt (Score:5, Insightful)
I hear story after story about Americans losing, or put at risk of losing, their freedoms. Freedom to create (stifled by patents, copyright, trademark). Freedom from federal income tax (which is alleged to never have been legislated). Freedom from unreasonable search (illegal NSA wiretaps). Gerrymandering and political lobbying that reduce the voting power regular citizens. Etc.
Do we just grumble about these things and suck it up? Are we suffering from how-to-boil-a-frog syndrom, as the majority of German citizens did when the Nazi party seized power before WW2?
Don't get me wrong - I am *not* advocating violence or illegal activity. But I am curious about why peope haven't gotten pissed-off enough to revolt.
Re:Revolt (Score:5, Insightful)
To get a revolt, you need people free enough to plan one, and who have a specific, tangible, grudge against the current powers that be. The current trend in the USA is to slowly erode the first without affecting the second. As long as the illusion is maintained that the next election could 'fix' things, you can keep this up right until the point at which the populace has no effective freedom, at which point you can do whatever you want.
The next step as freedoms diminish is to start reducing the size of the middle class: those who have money and time for lesuire, but do not have any power in the system. The powerful don't revolt: they run the place, and peasents don't revolt, they are too worried about their next meal. The only ones you have to worry about are those in between. Watch for further economic reforms that favor big business.
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Re:Revolt (Score:5, Insightful)
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Americans dont really love freedom (Score:5, Insightful)
So Microsoft spies on us while we use windows. So what? I don't actually notice. It doesn't inconvenience me in any direct way. And windows works the way I expect it to. I don't have to learn nearly as much as I do in order to use Linux, and all my games play on it out of the box. Oh, and I don't even have to install it...it comes on my computer. Convenience all around, so that's where my money winds up going.
The list of candidates to vote on is usually kept quite small. Sure, the two party system eliminates options, and our method of voter tallying is statistically absurd, but it is so darn CONVIENANT. For most of us, there is an obvious choice...the party choice. I don't have to bother listening to platforms or researching relevant issues...I just vote for my party and suddenly I am a good patriot with a license to complain. Isn't convenience wonderful?
Sure airport searches are a bit inconvenient if I am the one who gets searched...but the odds are low. Usually its some other guy who gets searched, and that makes me feel safer. Maybe they record and traffic my personal information, but I don't really feel any sting for that (for the most part, I don't even know its going on). I can fly anywhere and feel like my interests are safely guarded by the government. The convenience of this feeling far outweighs the minor inconveniences of the occasional long wait to get in the airplane.
So I can't copy DVD's. Oh well, I guess I will just pay them again. An extra fifteen bucks won't kill me. Breaking the law and risking punishment just so I can make personal backups is just a bit too inconvenient. Region encoding? What's that? I've never felt it's sting, because I buy my DVD's at Wall mart...not from some weird store way out in Europe...the shipping time alone is just too much, not to mention the extra cost. What I have got is convenient enough, and the added convenience you geeks talk about seems a little superfluous and way too much work to obtain. Nah, I like things the way they are.
So what if my cell phone calls are monitored and my position is tracked? So what if the providers are overcharging a bit because they can get away with it? Cell phones are an exemplar of convenience. So what if my internet usage is tracked and recorded? All they would ever do is prevent me from breaking the law anyway, right? That's ok with me. So long as the only people who get their rights abused by all this monitoring and information-tracking are a few social rabble-rousers, and not me, there really is no problem. I like all this convenience much better than the pains of actually making myself aware of what's going on and making sacrifices to ensure my continued privacy and freedom.
Power is a lot of work to keep hold of. Far too inconvenient. Let the politicians and big corporations fight over it. I am better off without any of it at all. Good riddance.
And God bless America!
Parent
Re:Revolt (Score:5, Informative)
Closer than that: http://www.gregpalast.com/detail.cfm?artid=385 [gregpalast.com] . Pick a largely African-American district near a military base. Do a mass mailing there. Mark the envelopes "Do not forward". Collect the bounces from the addresses of African-Americans who are in Iraq. Build a spreadsheet of them. You now have the ability to walk into the election offices and say that everyone on the list doesn't really live at their registered address. If the would-be Democratic voter walks into a polling station, they can still fill out a provisional ballot. If still overseas, their absentee ballot will be treated as invalid and simply not counted.
You also have no voting rights if someone opaquely controls the counting of the votes.
Parent
Test of obviousness (Score:5, Insightful)
Invite a bunch of new comsci grads who are unfamiliar with the patent and ask them to solve the specific problem in hand: mapping relational data to objects and see what they come up with. I am certain that most of them will have some sort of an automated object mapper.
I have 'invented' this technique a few times over the course of my working life in different projects. 10 years ago, 7 years ago, 4.5 years ago, each time for a different platform and each time it was fully automated (the last one was called a Persistance Facade, it was a Java implementation with objects being populated by reflection from database and database being populated from objects, everything was done automagically with an XML file that drove the conversion, and this XML file could also be generated automagically either from the DB or from the objects.)
It is just a ridiculously obvious idea and anyone familiar with basics of programming (not even necessarily OO, flat structures can be populated the same way and I had to do that 10 years ago in C,) and databases should be able to come up with some sort of a workable solution in quite a short time period.
I bet 99.99% of all patents are just as obvious for the people trained in the field in question.
Soon, all development will come from outside USA (Score:5, Insightful)
-Patent litigation will become part of the development process.
-Overseas competition will be able to release their version much sooner because they don't bother playing the SW patent game.
Would you move to a free country? (Score:4, Interesting)
Would you move from America to...
Canada? (Close, same language, but America's bitch in IP legislation issues)
Sweden? (Far away, different language, more intellectual freedom)
China? (Farther away, different language, sometimes repressive and corrupt government)
What is this kind of freedom worth to you?
Re:Would you move to a free country? (Score:4, Interesting)
My partner and I are at the point where we can see retirement in the next several years. At that point, neither of us want to keep living in a house in the suburbs, so we're talking about where we want to spend the rest of our lives.
*If* we move overseas, which is maybe a 20-30% chance, then I'd lean strongly towards an OSS-friendly country. I'd like to think I can spend a sizeable chunk of my retirement time writing and/or improving FOSS, because I've done OK out of using it and would like to give more back than I have to date. If doing that means I have to worry about infringing patents etc., then I'll give serious thought to what I'll have to do to remove that concern, and if we're already planning on moving countries anyway, finding a non-software-patent regime starts to become a significant factor.
For what it's worth, quite a few of my work buddies are thinking along similar lines. It's conceivable that this could result in a noticeable brain drain of still-highly-productive IT staff in their 40s-50s-60s over the next several years, and that might start to have a financial impact down the track. Even us taking our retirement dollars out of the country and spending them elsewhere would make a dent in local economies.
Parent
Key point (Score:4, Insightful)
This really seems to me to be the core of what's wrong with US (and soon, possibly EU, according to the article) IP law.
If it is a technical invention - a new technology - then you file a patent. That way you can profit from your innovation.
If it is something creative - something that anybody could have done, but you did it in your particular way and thus created something unique - then you are protected by copyright and thus are legally identified as the creative source, so you can be credited for your creativity.
Software falls between the cracks of the law, and so is protected by both. You have a category of products that you can't mimic without paying for it and that you can't replicate period. As far as I can see, this is only an issue because that which is protected by copyright - information - is now completely free to reproduce thanks to technology.
So, the whole problem boils down to exactly the same thing as music and DRM. It's just that the litigiousness of the US has brought it rapidly to a financial and legal head there. The only way it can be resolved while maintaining society's appetite for innovation is to come up with a new way of classifying the rights of the originator of information - be it technical or creative.
I am not the person to come up with that solution, but I do wish people would stop banging on about the brush-fire conflicts and start trying to figure out a solution to the cause of the problem.
Our hope: making influencial people depend on OS (Score:5, Insightful)
Apache, Python, Perl, Samba, etc. Public institutions as are becoming increasingly dependent on FOSS as well: computer science / physics departments use Linux. City governments are playing around with OpenOffice.org and Linux. Even various military systems are now based on a complete FOSS stack: Linux, GCC, etc.
So here's my hope: the politically influential organizations that *use* FOSS will out-muscle the Microsofts and IBMs of the world who advocate for software patents. And when a showdown occurs, software patents will go away.
Another possibility is that India and China will start producing far more softare patents than the US does. I think we'd see the U.S. government take a far weaker stance regarding international IP treaties.
Tech will go on, but the people? (Score:5, Insightful)
You can toss a big boulder into the path of a river and -- guess what -- the river doesn't stop. It routes around the problem. That is what open source projects will do. Patent suit says stop using method X, well we just invent method Y to do the same thing without infringing the patent. Project goes ahead. You cannot stop this with patent suits.
In fact, this is not endemic to open source; it happens in all areas. If you block something with a patent that people want bad enough, they will route around it, whether legally or illegally (c.f. the motion picture industry). This often leads to quality patented inventions falling into disuse because the patentholder is a bully. Something else is quickly invented to fill the same market niche and well all go happily on our way.
Now of course the trick is that rational settlements may not be possible, e.g., ACME Patent Troll Co. sues Poor Developer Harold for $1 billion in damages and won't settle for his ceasing to use the method. Even if it turns out favorably for PDH, he could be bankrupted by the proceedings. That is what we need legislation about -- the bullying of persons and families by giant corporations with near-infinite legal funds, where the cost of defending against their allegations by itself is a de facto award of damages: trial and conviction without due process.
This isnt about open source.. (Score:5, Insightful)
Re:That's ridiculous (Score:5, Insightful)
Parent
Re:That's ridiculous (Score:3)
Re:That's ridiculous (Score:5, Funny)
Price of hiring lawyers to take down developers: Several thousand dollars per developer
Price of eliminating all of your competition: Priceless
Parent
Re:That's ridiculous (Score:5, Insightful)
This is sort of like saying that rhinos and pandas can't become extinct because we have been trying to eradicate rats for centuries, and they are doing well.
Parent
Re:That's ridiculous (Score:4, Insightful)
Pathetically ridiculous, I know, and yet, that's the way it is today. How can one defend such a horrendously biaised set of laws is still a mystery to me.
As far as suing is concerned, plenty of **AA consortiums have already answered that question.
Parent
Re:That's ridiculous (Score:5, Informative)
Which they will if they get sued into oblivion.
TW
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Re:That's ridiculous (Score:5, Insightful)
That'll work just about as good as taking down all of the file sharers in the world. All of the popular OS software will turn into ghostwrite OS software with anonymous dropboxes in countries without absurd patent laws.
Beat that, they'll move to encryption. The company's can't win, and most of the patents are overtly obvious anyways and should be thrown out. If anything, Open Source will likely cause a patent revolution for that reason alone (just as downloaded music is changing the face of copyright as we know it).
Parent
Re:That's ridiculous (Score:5, Insightful)
It'll work quite well. Much OSS development is done commercially -- less frequently as part of a company founded around supporting a piece of OSS, and more frequently as a part of operating a company which is building its underlying infrastructure on OSS components. If OSS is heavily encumbered with patents, then that corporate use (and corresponding support) will disappear. Sure, some OSS will still exist -- but if it's only a spare-time activity, rather than something one can spend 8 hours a day on, that provides far less time for it to flourish; this is particularly true as developers get older and have a wider array of outside responsibilities.
I've been doing work on open source software on behalf of my employers for the entire duration of my employment history. Work will become much less fun and much more work should that go away.
Parent
Re:That's ridiculous (Score:5, Insightful)
Parent
Re:That's ridiculous (Score:5, Insightful)
Ok, sure, you're right. So OSS software ends up achieving the same lofty status as Kaza. I'm sure my company will jump right on the OSS bandwagon if that's the case. I'm sure OSS will have no problem attracting the best and brightest programers once they realize they get to be genuine lawbreakers.
Viva la Open Source! Long live the revolution!
Personally, I'd rather we, as a society, took the steps necessary to keep OSS from being marginalized and going underground in the first place.
TW
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Re:That's ridiculous (Score:4, Insightful)
Parent
Re:That's ridiculous (Score:4, Insightful)
This is unfortunate for the US. If the US doesn't do something about their patent system, it is very likely that they will fall behind China and India in terms of innovation.
But the U.S. is doing something about it. They're pressuring China and India to adopt US-style IP laws.
Parent
Re:That's ridiculous (Score:3, Informative)
You most certainly can be sued for patent infringement by simply releasing source code, but probably only for contributory infringement (although in case of program claims, the source code may event directly infringe on the patent).
Re:That's ridiculous (Score:3, Insightful)
Agreed. Most OSS software is so entrenched, so much a part of the current workings of the Internet, that to try and sue it away is a futile gesture at best. What corporation wants to take the brunt of the backlash when they successfully sue an OSS provider, forcing them to remove their software, only to have some major Net functiionality suddenly become unavailable? In this day and age, publicity is more important than product (think Arthur Andersen) and no company wants to be thought of us as the bully tha
Re:People NEVER learn when it comes to corporation (Score:5, Insightful)
So let me get this straight: if we make the government (who you say is backing large companies in "enforcing" IP) get out of the way so that the large companies are unfettered to do so themselves... what's different? Open Source still gets crushed. OK, so it's a different lawyer at the controls.
Granted, the whole mess isn't taxpayer funded anymore. But innovation still dies, and we aren't going to be getting a tax rebate anytime soon. The government will just put their money elsewhere (such as, foe example, picking up the tab at strip clubs for victims of natural disasters).
Parent
Re:Wrong, wrong, wrong! (Score:5, Insightful)
You're absolutely wrong, and clearly didn't read the article:
It seems very much like a hobbyist who's sharing his code with the rest of the world is being royally fucked by some vested commercial interest. Much like any other OS project could be. Wanna run the risk writing code that somebody making money off the same thing will get pissed off and decide to sue you personally for millions of dollars because you're fucking with their business model? No?
It doesn't matter that we're all criminals already for other things anyway -- that's part of a greater problem in our government and not related to the problem at hand. This is something that should have been nipped in the bud, as Perens says, a decade ago.
C
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Patent Commons patents are not pledged for defense (Score:4, Informative)
Indeed, some of the patents in the patent commons can be withdrawn at any time. It seems to be a half-hearted effort. Why? Look at the companies on OSDL's board. They are the ones that most profit from software patenting.
If you want to understand the truth about the patent commons, start at LWN's coverage of their disclosures [lwn.net].
There is another project called Open Innovation Network, started by Novell, that is supposed to contain patents that really are dedicated for defensive use.
Bruce
Parent
Re:IBM? (Score:5, Interesting)
"Didn't IBM and other large players pledge their patent portfolios to FOSS in case of cases like this?"
Having a patent portfolio for defensive purposes is only useful for preventing suits from other manufacturers who want to produce stuff without infringing on those patents. They will be happy to swap their patent rights for yours. But a patent troll holds only patents and doesn't make anything. He gets no benefits from cross licensing. So it doen't matter if IBM has pledged patents X, Y, and Z to open source. A troll who has a patent on W will still sue.
From reading the posts here it is clear that most people have no idea how serious this is. RMS has been warning about the dangers of software patents for at least 15 years. He was right but has always been too readily dismissed as an extremist. It will only take one or two successful patent infringement lawsuits before the legal sharks smell blood and the feeding frenzy begins. Don't think you'll be saved because the patents are for "obvious" ideas (which, of course, they are). Once a patent is granted the legal presumption is that it's valid and it is very, very expensive to overturn it. And there is a high degree of capriciousness -- if you are right in a patent dispute there's maybe a 50% chance you'll actually win the suit -- if you don't go bankrupt first. That's why businesses usually just fork over the exortion payments.
Parent
You keep using that phrase (Score:4, Insightful)
There's prior art--big whoop. That, and five bucks, will get you a cup of coffee at Starbucks.
Prior art isn't some silver bullet that will lay waste to any patent. Prior art is just that: any work existing prior to the work included in the patent relating to the art of the work included in the patent.
The existence of prior art does not automatically invalidate the patent. I don't think I'm going too far out on a limb to say, if it is not the case that all patents include prior art, then it certainly true of 99%+.
For example, I've invented an internal combustion engine which utilizes an innovative, non-obvious process to enable me to build a car which gets 100 miles to a gallon of extra virgin olive oil. However my process only works with oil produced by a specific method. In fact, it only works with oil from a special method that has been patented.
That special, patented olive-oil-producing method is prior art for my invention and would be included in my patent application, but has no bearing on whether my work is patent-worthy or not.
And let's say the implementation of my new engine is in a car with a specific type of existing transmission. That also would be prior art. And that also would have no bearing on the validity of any patent granted for my work.
I don't know why the concept of prior art is so hard for the
Is every computer program the intellectual property of the creator of the language used to write the program? You can't write the program without the language--it's prior art. If you were documenting a program, you'd certainly include some reference to the programming language used--it's prior art.
But you could certainly devise some innovative, non-obvious implementation of that language that would allow you to say, "this is my program."
Parent
End Game: M$ Wins. (Score:4, Insightful)
There are plenty of big dumb companies who will be happy to license your ability to use and improve free software. M$ and IBM and other companies pushing for software patents will be happy to claim ownership of everyones' hard work. That's what this is really about, isn't it?
Parent