Alan Cox on Patent Law and GPLv3

tykev writes "Linux kernel guru Alan Cox talks about kernel features, cooperation with hardware vendors, and software patents. From the interview: 'I don't think [Microsoft's patent threats] are the biggest danger. As Microsoft has been finding out recently it is the patent trolls, and organisations with buried patents in interesting areas that are the biggest threat in the USA. The real answer to that problem, however, is to pull the USA back into line with the majority of the world which simply does not recognize patents on software but respects them as literary works subject to copyright law.'"

No s***. But "recently"?

'I don't think [Microsoft's patent threats] are the biggest danger. As Microsoft has been finding out recently it is the patent trolls, and organisations with buried patents in interesting areas that are the biggest threat in the USA.

No s***. But "recently"? Part of Microsoft's stated reason for building up its patent collection over the past 15 years has been to defend against patent trolls Microsoft knew would be coming for Microsoft ASAP. (In fact, I think a near-dup Slashdot story in the past week has Gates quoted around 1993...)

Re:No s***. But "recently"?

So, how exactly does a patent collection defend against patent trolls?

The whole idea of the patent troll is that they don't have any business to defend so that they can use their patents offensively without worrying about (non-karmic) retaliation.

Ouch!

pull the USA back into line with the majority of the world

I thought the US is the majority of the world...

At least my TV says so.

He's Right

Microsoft simply can't sue individual OSS developers or users. And anyways, if Samba works the best with Windows, OSX, and Linux, people will still be using MS's "standard". Same goes for Kerebos and any other embraced and extended protocols.
Linux (and OSS) needs to support Windows. To do that, (in theory) they need to infringe on MS patents. It really is in Microsoft's best interests to allow this to happen, as it keeps people on their protocols, and tied in to their software.
The point of the threat was to scare commercial OSS users (the ones that can't take the PR hit of a lawsuit) into buying the Novellisoft "covenant" thingy that people have been bitching about. They never would have even sued those companies the Novell deal targeted. It just doesn't make sense, and would destroy their image even more.
Their plan? They know the power of open-source software. They know how well it works together, and with proprietary software (I think you can even use a Samba server to be a PDC in a Windows domain). They just want to keep people using their software in some form, rather than not at all. (If I didn't want to get sued, I'd force Windows to work with NFS, not Linux to work with SMB, or become an all-ODF shop...) This way, they can still cling on.

Re:He's Right

The stupid thing is that why should integrating with Windows infringe on patents at all? I paid for software, I should be free to do with it as I please. If they aren't ready to accept me tinkering with it, they should never have sold it in the first place.

When I buy a car, I can take a sludge hammer to it. I can chop it up into tiny pieces and re-sell it. I can repaint it, put new seats in, I can even replace the engine. Why should software be any different? Are there any other industries protected by such a strong veil?

Re:He's Right

I paid for software

No, you didn't. You paid for the right to use software - for some very specific rights, actually; not even all you'd wish/can think of/consider are entitled to.

Re:He's Right

Their plan? They know the power of open-source software. They know how well it works together, and with proprietary software (I think you can even use a Samba server to be a PDC in a Windows domain). They just want to keep people using their software in some form, rather than not at all.

You were doing great until that last sentence. Microsoft wants everyone to use Microsoft software, everywhere and all the time. This latest round of manoeuvres on the patent front is simply one aspect of a concerted attempt to de-commodify software, standards and protocols.

This is not news. We've known since the Halloween Documents [catb.org] first appeared in 1998 that they might do this:

"OSS projects have been able to gain a foothold in many server applications because of the wide utility of highly commoditized, simple protocols. By extending these protocols and developing new protocols, we can deny OSS projects entry into the market."

Protocols are by their nature immune to copyright protection, but not to patents. It seems clear that Microsoft sees patents as a necessary weapon in their fight against open standards. I think they're right. Software patents are anathema to open standards, and that's why software patents have to be stopped.

For my part I find it a little disturbing that people who've been in the FOSS game for this long should so easily forget this. Microsoft's take on the patent issue seems to be that they're big enough to cope with the madness of patent litigation. They'll take some hits in the short term, but ultimately, they'll end up holding enough of the patent pie that they'll be unassailable.

FOSS, however, suffers far more than Microsoft ever could. Even today, the presence of sharks in the patent waters might be enough to stop the next Linus Torvalds from sitting down and writing the Next Big Thing, or perhaps to convince the next Richard Stallman that the battle is already lost. The more they drive developers into the embrace of large corporations, the more they can influence - if not dictate - the directions software development takes.

How to compete?

We let manufacturing jobs slip into other countries, and are told to be reassured - we get to keep the good engineering jobs. Yet they also set up the system that does not promote innovation, but rather one that is stacked in favor of the big players but with "good" intentions came the unintended consequences - like how leechers game the system.

How can people stay positive on an economy that seems neither ultimately market-based rather than litigation based and where what used to be virtues (hard work, creativity, taking a chance) are punished by the government and unworthy trolls/big_players get the gains instead?

Satire

I'm looking to the satire loophole applying to software - that you can use code in order to make fun of it.

20 years!

I don't think that patents are an entirely faulty method of protecting software that is innovative. the real reason I feel that they are horrible for software is their 20 year lifespan. compare that to Moore's law. a single lucky patent of the right idea can guarantee you a monopoly for generations of software. 20 years is likely enough to get you sole rights to an idea for all of its useful lifetime. imagine if the patent for the typewriter were to be set to expire next year? as society continues to advance at faster rates the lifetime of a patent needs to get accordingly shorter or it will stifle creativity and slow human advances to a rate set by the lifespan of the patent.

The Silent Enemies

The patent trolls are the silent enemies.

Like in the forest, you look for the bears, but it's the snakes and cobras that ultimately get you. You don't see 'em until it's too late.

Everyone looks and waits to be sued by Oracle, AMD, Ford, GM, Union Pacific, Amtrak, United, Fidelity, Morgan, Carnegie, Microsoft, IBM, Boeing, Raytheon, Intel, Nike, McDonalds, Disney, or any other household name.

But it's some un heard of patent troll, some unknown law firm from the middle of nowhere, who will kill you at the end . . . .

The snakes who sneak around the darkness of the floor of the forest . . . .

From the playgrounds of the world, I am nasty . . . . Making kids cry . . . .

The padlocked.swings

I don't mind software patent or copyright if

the following conditions are true:

- Patents and copyrights must have a limited time frame, and can not be extended (don't make me talk about that mickey mouse thing)

- All copyrighted materials must be registered at a central repository, and accessible to all for perusing. Otherwise, you don't the protection of the law. If you don't register, your work becomes public domain.

- All patented "inventions" must be registered at a central repository, and accessible to all for perusing. If you are patenting software, all your source codes about the patent must be in the repository, and accessible to all. If you are patenting a certain method on chip design, all your schema and related materials must be in, and accessible to all. Same thing for any other patents, regardless whether it is an avionic patent, a chair design, a method on desalinating sea water, etc. If the materials about your patent are not in (or incomplete), then you don't receive any law's protection, all you can do is to consider as industrial secrets, or some such. And anyone with the right skills should be able to use that materials and come up with exactly the same result that is describe in the patent application document. If people can't get the same result, you lose the patent, even if the patent has been issued, and you get slapped a fine for wasting people's time and money.

- There should be a probation period when people can submit prior art related to an application. Just like before you are issued a marriage certificate, it is published in the city hall so anyone can protest if he/she has the evidence. Now, no one can come up with some internal code (or schema) which has has never been published to the public or registered as patent and expect to contest it. Well, you kept it secret, someone came up with another (or even the same way) to do the same thing, and applied for a patent. You can't say anything, you made your choice to keep it secret.

- All copyrights and patents must be no longer than 20 years and can not be extended. The copyrighted materials automatically become public domain as soon as the author is declared dead. I think 20 years is already ridiculously long, given the pace of technology advancement. Setting the protection period to a shorter time can also help to accelerate progress as well, so it's good. Look at the current state of copyrights, a lot of authors are dead, but their materials are still copyrighted. The dead can't create anymore, so what is the copyright protection for anyways? You might say someone might have some dark intention, but that's not what copyright and patent laws should care about.

- Applicants are charged a flat fee for each application, and the fee is indexed to the inflation rate every year.

As long as there are reasonable restrictions, I'm all for copyright and patents. You should be able to copyright or patent anything.

Simplify the whole thing

Someone had earlier posted about the four different types of "intellectual properties" - patents, copyright, trademark and trade secrets. I always find it pretty amazing that software seems to be the only field where all 4 protections could be available on the same piece of code.

A piece of code can be protected by patents, can be copyrighted, trademarked and even held a trade secret (closed source). What's so special about software that it mandates so much protection? I'd love to see just one protection available for software. For instance, if it's trade secret (closed source) then you don't get patent or copyright protection. If it's open source, then you get only copyright protection. For really core and non-obvious algorithms, you can get patent protection, but you will lose copyright protection in that case (say you will need to submit the code as part of the patent application, making it public domain).

I love Alan and Phil

"...pull the USA back into line with the majority of the world which simply does not recognize patents on software but respects them as literary works subject to copyright law."

That'd be beyond beautiful. If anyone wants to muster up ammo for the debate, please consider reading (late) Phil Salin's amazing article:

http://www.philsalin.com/patents.html [philsalin.com]

Re:Alan Cox can suck it

That is the same excuse used to prevent the overhaul of an unfair tax system.

Re:One extreme to the next

duh!

Then you can't copy paste code , but every time you write a program from scratch you don't end up infringing 2347 vaguely worded patents preventing you from implementing even the most trivial computer tasks.

I think you do not know what patents en copyrights are.

Re:One extreme to the next

"as someone familiar with the hardware patent world I've never understood why software people think that conflicting, overly-broad patents on the basic process required to achieve some end result are unique to software"

The objection people have to software patents is due to the fact that they cover concepts, not specific mechanisms that embody those concepts. Your example of thousands of different and possibly overlapping compressor designs illustrates this nicely, because applying software patent principles to the hardware world would mean that somebody could hold a patent on processes that reduce the volume of compressable fluids which would (in summary) read something like this:

1) The fluid is drawn or pumped in from a higher volume source.
2) One or more mechanical processes reduces its volume by compression.
3) The resultant compressed fluid is then either used directly, or stored in a suitable compression vessel.

So all those thousands of compressor designs would have to pay royalties to whoever owned that single broad patent on "Compressing Compressable Fluids", even though the patent itself doesn't tell people how to do any of the things it covers, so it's completely useless to anyone who has to design a compressor. Then, when people were breathing a sigh of relief because it's at the point of expiring, the patent office grants an extension because the original owner added some "innovative steps":

4) If used directly, the compressed fluid can distributed via rigid pipes or flexible tubes.
5) In cases where it is stored in a pressure vessel, the vessel may form part of the device.
6) If it is not part of the device, and therefore is a separate component, this component can be placed in a storage facility.
7) Components in storage facilities from step (6) can be given or sold* to others who do not possess a device for compressing compressable fluids.
*Please see separate patent number 8199477728 "A Process For Giving Away Or selling Stored Compressed Fluids"

Re:One extreme to the next

The problem becomes, how many ways can you write a single piece of code? At present, you are fairly limited by the languages available as to what you can and cannot do. This means that you could get several pieces of code doing the same task that look nearly identical. Now is this going to be copyright infringement? Variable names could even come out looking very similar if both programs were coded using the same naming convention. There is a huge problem with treating a software copyright like an "art" copyright.

Actually, it's not. Copyright pertains to the expression portion of software, but not the underlying ideas, functionality, etc. Ultimately, maintaining this distinction takes priority over copyrightability. For example, where there is only one or only a limited way of expressing a given idea, the idea and expression are considered to have merged, and there cannot be a copyright, lest it effectively protect the uncopyrightable idea. This is known as the merger docrine.

There's also the scenes a faire doctrine, which makes uncopyrightable things like stock story elements. For example, in horror movies, someone originated the routine bit where the mood is set when you see a wolf howling, silhouetted against the moon. But it's unprotectable since it's a common, stock element. The doctrine is used in the software field, both for elements which would be common across much software, as well as for portions of the code which are dictated by external considerations such as efficiency or platform compatability, and so lack some originality.

Finally, there's the fact that copyright infringement has nothing to do with identicality, but rather has to do with originality. That is, it isn't unlawful for Alice's program to be identical to Bob's program, so long as Alice didn't copy her program from Bob. For many works, independent creation -- when it happens -- can still be tricky to show. But for closed source software, it would be tricky for the alleged infringer to have seen the source. The accused would want to have kept some records to help vindicate themselves, and if they did have some kind of access (e.g. Alice used to work for Bob's company and could reasonably have snuck a copy out), they'd have a pretty strong case. Reverse engineering can qualify as access -- e.g. if you decompile the binary -- but again, the underlying functionality isn't protected by copyright, only the way in which it is expressed can be, subject to the limits discussed above. That's why cleanroom reverse engineering is a good strategy to follow.

You might also want to look at the abstraction-filtration-comparison test in the Altai case to see how courts will often compare two pieces of software to see if there has been infringement.

Re:One extreme to the next

Very informative post. Thank you.

That's why cleanroom reverse engineering is a good strategy to follow.

And after 20 or so years of seeing their proprietary code reverse engineered and opened up for the public to use, large companies like Microsoft decided that only Software Patents would turn back the rising open source software tide.

Sadly, for all of us, after they subverted the U.S. Patent system for their profit, they still failed to kill open source (is it even theoretically possible to kill an idea?) ... but now our Software Patent system is expanding like a pus-filled boil, threatening to blanket the whole world in ...

Re:One extreme to the next

Because that is the closest thing. Paintings, statues, performances(including dance) can all be protected by copyright. Just because a software application has almost no artistic value does not mean it does not deserve the same kind of protection.

If all software were public domain, there would be nothing preventing people from releasing GPL'd software as binary only, and refusing to share the modifications. (because there is no longer anything that holds them to the copyleft license)

Re:One extreme to the next

No it's not. The presence of citations in a quote doesn't affect whether it is infringing or not. Rather, it is good practice for purposes of avoiding plagarism (which isn't illegal). Citing others' work, when it is used, is good academic and professional practice. Nothing to do with the law, though.

Re:One extreme to the next

I think the argument is that the code itself is subject to copywrite law. So I can't copy your code verbatim without your consent. Fair enough -- the GPL, for example, relies on copyright protection. Patents are a whole different beast, though -- if a programme is patentable, not only can't I copy your code, but I can't even independently implement whatever it is that it does. Which is pretty silly.

Re:One extreme to the next

In the U.S., literary works are one of the categories of work explicitly protected by copyright. Literary works, in that sense, are defined as "works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia . . ." Cox' point is that copyright protection is enough; you don't also need patent.

Re:this is a reasonable opinion

shills, ? where ?

Re:drill-down question

What about Budweiser?


No, not that one, this [wikipedia.org] one.
Nectar.

Re:Respectfully disagree.

If you have been paying attention, you would notice
little difference between the current admin and Microsoft.

Re:Alan Cox can suck it

We aren't talking about "organically-evolved law", the implication being that such laws evolved over a substantial amount of time and are so ingrained into a society that changing them causes significant disruption. We are talking about recent corruptions/subversions/perversions of organically-evolved law, and such things can be repealed. And they need to repealed soon, before they do become ingrained.

Re:Alan Cox can suck it

Prohibition.

"Organically-evolved law"?

Horseshit. There's nothing "organically evolved" about the disaster that is US software patent law. There's one ridiculous appellate ruling, from which the rest of this shitstorm has inexorably followed.

The entire history of time until 1998: for the most part, neither algorithms nor business practices are held to be patentable, since they are both held to be "abstract ideas," which are not patentable. There are exceptions, but they are rare.

The State Street ruling [findlaw.com], 1998: Hey, let's change the legal test for patentable software from "causing a physical transformation" to producing "useful, concrete and tangible results". Vague enough for ya? Awesome. And while we're at it, let's also apply the same completely meaningless legal test to business practices, too!

The history of software patents since 1998: One patent on Zocor! One patent on Viagra! SIXTEEN patents by Microsoft of movement and positioning of a cursor! Gee whiz, maybe we should fix this problem. Oh, wait... we wouldn't want to "dismantle organically-evolved law from the top-down", because Anonymous Coward says that such actions always result in DISASTER!

"Dismantle organically-evolved law from the top-down". Fantastic. What the hell does that even *mean*?

Re:Wait For It

Of course! If we stop recognizing software patents, then the terrorists win.

Re:One extreme to the next

The GPL depends on Copyright law. I think you should go and read both - the GPL and the Copyright Act (doesn't matter which state's copyright act, they are all the same).

Re:Alan Cox can suck it

> Re:Alan Cox can suck it

Right on! I'm more interested in his sister, Nikki [google.com], and her aural contribution ... what she has to say, I mean.

> You can't dismantle organically-evolved law from the top-down; that's never, ever worked in any
society and always results in disaster.

Er, yeah. Ok. zzzzz

Re:Alan Cox can suck it

You mean like the American Constitution? Look at the current situation---reject it. Think about what you think should be---write it down. Implement (always a tough bit, difficult to get good program managers).

That only worked because the founders were remarkably principled and selfless individuals. If any of them had been Stalin or Robespierre type figures who believed they should have absolute power, the American revolution would have been a disaster like the French one, or the Russian one. Or pretty much any revolution apart from the American one in fact.

Americans are right to celebrate their founders, particularly George Washington. He could easily have ruled until he died and then found some constitutional device to pass power to his heir. As Jefferson put it

"The moderation and virtue of a single character probably prevented this Revolution from being closed, as most others have been, by a subversion of that liberty it was intended to establish."

Comparing the first post revolutionary leader to a project manager is disingenous in the extreme. You basically need to have an almost perfect leader in this situation who will allow a system to be set up which will constrain his actions to set a precedent for his successors. It's all to easy to use real and imagined threats to the regime as an excuse to set up a tyranny.

Re:One extreme to the next

And this gentlemen (points to parent) is what we know as a Patent Troll. (Or was that a Blatant Troll)

Because he is advocating copyright

Look, there literally infinite numbers of ways to do the following:

x-y=1

A patent would protect the full million ways to arrive at this result.

Copyright would recognize every different way to arrive at this result.

And since software is nothing else that

Re:Patents are good

Says the guy with the MS Win2k3 page set as his homepage? Shouldn't you be paying your "donations" to the anti-trust officials or something?

Re:butt-slut fever!

> Alan Cox is full of shit.

> The Linux Kernel Guru needs to go back and start guru'ing his kernel and stop telling us
> what is good or bad in the industry from the stand point of patents.

And who are you?

Let me step back and get some perspective, here...

Alan Cox made himself a legend on the basis of sheer productivity. He's repeatedly tackled areas of the kernel that many others thought thankless, difficult, and frankly too damn intimidating. E.g. debugging & eventually taking over the original networking stack; developing the original multiprocessing code; introducing some semblance of order to the ATA driver mess. So yes, I candidly agree with your label of "Linux Kernel Guru"; I'm with you so far.

Alan Cox has for years been a point of contact for large corporates and governments, and has influenced everything from global banking IT systems through to government policy and antitrust legislation. He's campaigned tirelessly against the DMCA, software patents, and other abusive/restrictive legislation & infrastructure. You seem to think that's of little value; I'd say he's eminently qualified to volunteer comment on Linux strategy. But on this occasion, as usual, he didn't volunteer his opinion; he was *asked* for it.

Alan Cox is widely known to be a "regular guy", unaffected by whatever recognition and awards he's given, and generous to boot. I happen to know - and hopefully he won't be too annoyed at me for saying this publically - that the award he was quietly most touched by was the 2003 FSF Award for the Advancement of Free Software.

When was the last time you contributed to the kernel? When did you last communicate anything beyond a cheap abusive posting on /.? When can we expect to see you nominated for a FSF award?

You have manifestly exercised your right to free speech & expression; now let me reciprocate :

Stop wasting bandwidth and go and do something more useful instead, you pointless piece of white trash.

Mod parent down more, please. I'm really interested in seeing where this "obvious-bullshit vs do-not-feed-the-troll" curve will minimise.

Cheers,

Conrad

Re:Patents are good

So while nothing is perfect, even in the US, I do think that we are doing it quite right.

So please, let's start respecting patents and lets stop violating them at every opportunity.

Please make up your mind before posting. What is it, you are doing quit right and should go on violating patents at every opportunity? Or you are doing badly and should change that as soon as possible?

Re:One extreme to the next

Or a book/film genre. Like if someone patented the drama, action or police procedural, to name a few popular movie/television genres. That each of those could have an element of the others just make it a better analogy (one invention is often covered by multiple patents).

Re:Patents are good

"the US is basically Number 1 at just about everything"

Apart from educational achievement of its kids, amount of press freedom, GDP per person, productivity per worker per hour, gdp growth per annum...

It /is/ best at getting its inhabitants to believe it is the best. And at greenhouse gas emissions per person. I'm sure at other things, too.