Maybe Software Patents Won't Kill FOSS After All

Roblimo writes "Lawrence Rosen, attorney for the Open Source Initiative, doesn't seem to be as worried about software patents' effects on open source development as some Slashdot readers. In this article he says, 'Don't be too paranoid about the patent problem. It's a real problem, but not a catastrophe. Any patent owner that tries to assert its patents against open source software has many hurdles to leap before the royalty checks start to arrive.'"

Is this an issue?

[LivinFree]

Excuse my ignorance, but is this really an issue?

If the OSS community comes up with an idea first, they can claim prior art, no? Otherwise, the idea (or implementation) rightfully belongs to the person or corporation that comes up with it.

Proving prior art is a major nusaince, but if it happens enough, will companies place their patents under more scrutiny rather than figting for something they'll likely lose?

--
http://acostas.org [acostas.org]

Security matters

[gmuslera]

At least in security you must assume your enemy have a lot of resources and is even smarter than you. With software patents, and you project being in risk because some essential portion is patented by someone else, people could doubt in wasting time if even when sucessful all could fall because the owner of the patent succeed in making trouble.

And if well could be difficult for individuals holding patents, what about patent trading? If my project puts in the way of i.e. some Microsoft commercial program and starts to be viewed as a threath or at least a cause of not so high profits they could have the resources and the will to probably end my entire project.

A question I've always had...

[pongo000]

...and one I was hoping Mr. Rosen had an answer for: Exactly who does one sue for patent infringement when it comes to OSS? Once OSS has been "released", you can't call it back. In many cases, alleged infringers are given the opportunity to either license the patented technology, or to no longer use the technology.

Although IANAL, I maintain that patents pose no real threat to OSS development, since authorship of OSS is a "moving target" (especially where derivative works come into play). Most OSS author are not likely to agree to royalty payments, so exactly what recourse does the accuser have at that point?

Let's think about this...

[maztuhblastah]

1) SCO goes on a crusade, accuses anyone/everyone associated with Linux. IBM steps up to the plate and pours tons of time and money into defending Linux. Result? SCO f*ck's their relationship with Baystar, Chrysler, and McDonald's to hell and back and watches their stock go swimming in Wall Street's crapper.

2) Microsoft patents anything and everything in an attempt to both block open source competition and pave the way for Longhorn's release. Result? Apple upstages MS with the demonstration of Longhorn's features in working form in Tiger. Microsoft shits their pants as they realise that those features were implimented not only more efficiently than they were able to, but also without violating any patents. The open source community continues to work (almost) uninterrupted.

3) Microsoft throws a fit, heats up the presses, and launches a massive wave of FUD at the public. Results? Just that...the IT world looks at the FUD, looks back at the results, and continues to depend on Linux/BSD/etc. for servers...

4) ...you can contribute to this one...


Somehow I doubt that patent sprees will ever have a major effect on the open source movement...

Not impressed

[Anonymous Coward]

Can the open source community create its own patents?

The people commonly referred to as the "open source community" - in this instance meaning the hackers and developers who write much open source software -- can never generate the number of patents obtained by the big patent powerhouse companies. Filing patent applications simply takes too much time and costs too much money.

I'm less than impressed with this guy's reasoning. The fact that we can't generate the same volume of low quality patents as a Microsoft is beside the issue. Quality can beat quantity. A few key patents could exert enormous leverage, particularly if they were closely linked to widely accepted standards that even a Microsoft has to respect.

The writer also does not realize that an open source group could accept donated patents, and (in the U.S.) return some of their value to the inventor (or corporate owner) in the form of a tax-deduction. The donor would be a double winner. His idea would be widely adopted and, if he/it has taxable income, he/it would get a tax deduction.

And while it is true that those patents would offer no protection to a patent-holding company with no other business (no patent can), it would offer some protection against a SCO or a Microsoft. And that's where the real danger lies.

--Mike Perry, Inkling blog [inklingbooks.com], Seattle

Patents as a double edged sword?

[earthforce_1]

I have been sort of thinking about this, and how patents are used in industry. Perhaps the intent can be reversed, as are done with software licences under copyleft.

Can we devise something analogous to GPL for a software or hardware patent, so that if you use it in your product or design, then you must provide full source code and/or schematics and/or ensure that all other patents used in the product or software are available under the same terms. Then all open source advocates have to do, is create their own patent portfolio, as long as we can find lawyers willing to help with the filing. We can fight fire with fire, the next time somebody tries to embrace and extend, they will have serious trouble if the interface is protected by a public patent.

Hello, RMS - are you out there? Wanna bite?

Re:It's not about the royalty checks

[einer]

I agree that it has nothing to do with the end user.

At my previous place of employment, management was scared away from Open Source Software. We had a "consultant" audit our shop. Apparently, Samba has the potential to create "future legal headaches." The SCO debacle was also brought up and used to scare management into purging open source software from every server and workstation. "Future interoperability concerns" were cited as well, since the world stops spinning without Microsoft, and Microsoft doesn't endorse our practice of using OSS.

I didn't find any actual out and out lies in the review. It's true that in the future, there is a potential for "legal headaches." It's not likely, and I imagine I'm probably more likely to be struck by lightning, while being eaten by a shark, while also holding the winning Powerball ticket.

Clearly, this is an example of terminal rectal-cranial-inversion, but I doubt it's an isolated case. Suits listen to suits, not to programmers.

It's not patents per se, but the uncertain (by whose standards I couldn't say) legal water that OSS exists in. The danger exists in the fostering of legal uncertainty.

Can't Design Around

[HardYakka]

The only patent I can think of that couldn't be designed around would be the case where a standard is patented i.e. MP3 encoding.

Can anyone think of any other case were a patent could not be designed around? If so, would the author still be liable if the patent was designed around after they were informed of the infringment?

I'm Chicken Little I guess . . .

[Eric Damron]

It is my sincerest hopes that Lawrence is correct; that some in the open source community are over stating the danger of patent litigation. He does NOT however state that there is no risk. I must have the "Chicken Little" syndrome that he talks about. Let me share my reasoning:

From the article...

"Does the dramatic increase in the number of software patents portend a catastrophe for open source software?

Some argue that the threat of patents is vastly overstated. They point out that, while there are from time to time serious assertions of software patents, patent litigation is in practice very rare. This reflects both the high cost of such litigation and the difficulty of winning. "

Although patent litigation has so far been rare, it is my belief that Microsoft sees the writing on the wall and will either directly or indirectly though the use of SCO-Like actions fund law suites in an effort to destroy any open source project that it feels is on its turf. Just because patent litigation has been rare in the past is no assurance that it will remain so. How many copyright litigation cases have been levied against the open source community? Microsoft helped SCO fund it's current litigation and I believe that it is a signal that they intend to use the law as a new anti-competitive tool.

Litigation against a well funded corporation like IBM would be incredibly expensive but for smaller groups like the SAMBA team it wouldn't. Microsoft wouldn't have to win. All they would have to do is drain the open source company's coffers dry. Unless we all stick together, of course. Will we? Would there be a white knight corporation out there willing to swoop in and save the small open source developer? I don't know the answer to that.

I believe that Microsoft's strategy is to ensure that Linux cannot be compatible with their next version of Windows. They have been filing ten or more patents every day related to Longhorn. The idea is simple. Find standards that you feel will become important and then patent as much technology as close to those standards as possible.

Remember that Microsoft doesn't want to allow Linux to talk to it's monopoly OS. If they succeed in their strategy Linux, they hope, will wither on the vine. Look for Microsoft try to patent new protocols and force them to become "the standard." If they can control the way in which computers talk to each other via their monopoly and patent the way computers talk to each other then Linux as we know it could be toast.

Easy for Linus to say.

[Anonymous Coward]

As he's surrounded by free lawyers provided by IBM, Intel, HP, etc.

One Simple Defense

[Euler]

Ok, here's an idea I haven't seen floated around on Slashdot much... Use the closed-source model as a weapon against itself. Corporate software vendors are bound by their own dogma and/or investors to never let their source code out.

Patents REQUIRE full disclosure. Think of a 19th century inventor like Edison. He has to fully describe his invention in a patent disclosure so that anyone in the field can make use of the invention. That is the spirit of a patent. It is required, or the patent is invalid.

Fast forward to the 21st century. If a patent holder cannot fully disclose a working model and description of an invention (i.e. source code.), then the patent holder has violated the responsibilities of a patent holder and looses rights to the patent. Yes there are examples of this, and yes it is clearly spelled out in law.

There are probably concepts that don't require source code to demonstrate, but most code-level innovations that geeks are worried about do. Furthermore, court action brings the possibility that source code could become exposed as evidence - something many companies may greatly fear. A company might not mind leaking some demo code for a single patent. But with a whole arsenal of patents, the burden starts to fall on the patent holder.

This isn't a totally bullet-proof defense, but one worth exploring.

Re:It's not about the royalty checks

[crucini]

Nice fable, but I don't buy it. Suppose Microsoft alleges patent infringement in Linux, and demands that Linux distribution stop. You think hundreds of angry geeks are going to sue Microsoft? What would be the basis of their lawsuit? If the lawsuits are baseless, and merely a "legal DOS", they would be dismissed and the plaintiffs would be subject to penalties.

What other kind of sting do you have in mind?

Re:It's not about the royalty checks

[sumdumass]

i would agree to an extent. Fortunatly i tend to try and use opensource solutions for much the same reasons. I can pretty much guarente i will be at the minimum consulted on anythign done to my servers i have in place.

I recently had a law firm set a windows 2003 server in place and upgraded all the workstations to new dells running windows XP. I was against the move but didn't have mmuch say in the matter because they used another consultant that was recomended by a vender trying to sell them some software (he sold them on the same basic story but added how much more reliable it was). After about 3 days somethign went wrong with the domain controler (still unknown what after 2 months) and the 2 backup domain controlers wouldn't step in when the main server went off line. I thru a baremetal linux box together and loaded up the last backups i had availible went onsite and had them running the same day.

This set up cost them over $128,000 to start and added cost keep rising. after the same thing happend on another ocasion, i now have two servers back on site running backups of thier windows domains and if ever needed all they have to do is log onto a second domain and they can continue working with minimal diferences. Things like the exchange servers shared calendering don't work and a few others minor inconvieninces but they don't use any of that anyways.

Of couse now my fee is a little more and i lease them the 2 server that replaced the 3 dell poweredge quad proccesor machines that they can't seem to keep going strait for only 30 workstations. I over heard one of the partners saying somethign to the extent they should have just spent the money for the upgrades on some rental property instead. At least then they would know how much they would have to spend and how much they would be making from the investments. I assumme they will get everythign working right soon but i have a feeling the linux boxes will stay for a while. The strange thing is they didn't need anythign but a few workstations that were around 1-1.5 gig pentium 4 with only 256 ram and maybe a couple win98 boxes instead of the win2000 workstations they had.

No point in worrying.

[Ambassador Kosh]

I suspect that even hello world infringes on several dozen patents. Something like python, perl, slashdot, gnome, kde etc are likely to violate thousands to tends of thousands. So much pointless stuff has software patents for it that there is no real point worrying. When you are in the middle of a minefield it is too late to worry about safety.

Overall I would just ignore all software patents. If you don't pay attention to any the odds are the penalties will be far far less. Also it makes it easier to invalidate a patent if you knew nothing about it when you infringed. Overall just try and write verty good software and get large businesses hooked on it. When it costs far less money to get the patent thrown out then it does to switch to some other system they will defend it.

Also remember that proprietary software offers no real advantages here. Any proprietary product you use could be nailed by this at any time also and it could put them out of business so it seems the risks are pretty close to me but free software is more likely to be defended by a larger number of people.

I suspect at some point free software is going to end up with some kind of get out of jail free type thing with resepect to patents like nasa has. Patents just won't apply to it since it hurts the society too much.

Inevitability of Civil Technology Revolt

[powdered toast dude]

Ultimately, it's not going to be about tactics like patents and lawsuits and licenses. It's going to be about the populus and the freedoms they deserve and want. The problem is that they don't realize it currently, because the technology is so new that they only thus far believe they want "whiz-bang features".

We, the faithful, already know what is "right". And, I believe, as the general public becomes more technologically knowledgeable (as has happened in the automotive industry in the last century), the population will indeed come to realize the civil technology freedoms they require to retain the immutable freedoms that America's founders intended as they were manifested in the society of that time. Until they do, the corporate powers that see further into the future than grandma does will (temporarily) win.

But once the masses do "get it", civil technology (and general consumer) revolt will not only be necessary, but will be practical and, indeed, so obviously in the interests of the masses that it will be unstoppable.

Corporate America and Congress take note. Civil technology revolt is coming. The question is not "whether", but only "when". When it happens, on which side will you place yourself? How will you strategically manoever yourselves then?

Not illegal, it's still under GPL ..

[RedLaggedTeut]

I don't believe that a patent can make releasing source illegal, and I'll offer arguments why:

First off, the patent owner had to publish information to the patent office which describes the patent. As your source code is not a product, but just a description of one, it should be legal.

Second you are allowed to do research using others patents, you are just not allowed to sell a product based on the patent. So there is at least one instance where you are allowed to distribute under the GPL, so your release is a valid GPL release.

Third, AFAIK you are allowed to use patentented stuff for research (on it). I wonder whether distributing something for free would be allowed - since you can always claim you are releasing it for people doing research. And since every user has the source, he can do "research". You probably would be forbidden to release binaries though.

This would place the burden on distributors that they may not charge (much) for the distribution, but they do not need to change the license since the burden is placed on them automatically by patent law.

I realize you would have to jump through some legal hoops to actually make use of your rights, but I believe your step from patent illegal => GPL illegal is wrong. At the worst, you still receive rights to the source under the GPL, you just may not exercise them because of other laws(patent).

Patent is a IP. Copyright is a IP.
But not: Patent=>Copyright.

Re:Mixed message

[julesh]

Actually, MAD seems like a good metaphor. It points out that the patent war might be avertable -- if the OSS community can acquire allies with enough patents to dissuade an attack, then the attack will probably never come. The question is: how far will IBM et al go to support OSS? Would they openly fight Microsoft?

Re:Is this an issue?

[BillyBlaze]

Thanks. I didn't know iTunes had a similar feature, and I wonder how it works. When I started, there were many "compressors", but they didn't have lookahead - maybe iTunes is like this? VLevel's first public release was in April 2003, and I probably had the idea some time before that - no idea how that compares to iTunes. And I certainly didn't copy it - basically I wrote it to stop my dad's complaining about the dynamic range of classical music, and I wasn't aware of anything else like it at the time. Anyway, yeah, I'd prefer not to be sued over it, so I'll probably return the favor by not suing iTunes.