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Software Patents vs. Free Software
Bruce Perens writes: "Did you think you knew what I am doing about software patents from the news coverage? You're probably wrong. Get the real scoop here. There's been enough distortion that I took the time to put down my own opinions, and an explanation of the summit meeting I'm calling on Free Software and The Law. Thanks! - Bruce" You might need to read our previous story about Perens' patent activities for background.
As big a fan of Open Source and Free Software as I am, I don't think that this is the way to go about promoting it or protecting it. Sure we have some kind of implied backing from companies like IBM and HP at the moment, but as Bruce says it's not anything official, and it shouldn't become official.
By making the links between open source and these companies explicit, we are basically putting ourselves into legal obligation with these companies, sacrificing freedom for security. And we all know what our Founding Fathers thought of that idea!
No, the strength of free software is that it is free. By tying it into treaties and contracts with companies we lose the strength which makes it far superior to any closed-source equivalent. We all know corporations aren't to be trusted, and despite their current "nice guy" acts, both IBM and HP have in the past abused their positions within the industry for their own gains.
Free software should remain free. And corporate sympathisers such as Bruce Perens should realise that by playing to the whims of their masters, they risk everything we've gained in the last decade.
Personally I don't completely buy Peren's statement that the net effect of patents held by large companies just cancel each other out. They may happen to cancel each other out, but they also prevent new smaller companies from joining the "big boys", which clearly is also in their benefit. However I do feel, perhaps contraversially, that software patents should exist. What I disagree with is the standard length of patent - it's simply too long for such a fast moving field. (The same applies to many fields, such as genetics.) With a short-term patent, say 3 years at most, people would be able to protect their design (and investment) from others for a short period allowing them to bring to the market a new product. If they fail in that aim then other people should be allowed to take up the challenge, instead of the patent languishing for years to come preventing further work. If we abolish patents completely then many ideas will simply become secret technology; no published articles from commercial orgs. It may also reduce the amount of R&D done in such places, which would be a bad thing.
Ironic to see that one country controls the fundamentals of an invention that wasn't created in that country. Why should the United States have exclusive rights to determine what should and what should not be patented. Example would be the Swede who invented the mouse and never got his patent, nor credit for the invention. Why should he be cheated by a system which cannot govern themselves in a morally ethical fashion, that extends to everyone, free from biases such as the parties bank roll.
Maybe a consortium of international scientists, and engineers should be chosen via methods of voting to serve on an international commitee to promote fair uses of patents in non biased fashions, as opposed to having one central form of governance which does a crappy job allowing monopolizations.
Take notice "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" now in theory I take this in context to mean that no software in the world should be patented since it took the works of other patented (pre-existing works other than the Author's own) items to create. How does the agency determine that "X Product" from X Foo Company is the genuine inventor of the product without using something that was hidden under the dusty shelves at the patent office.
Is it me seeing this in a different perspective entirely or is this more or less the same arguments coming out of Peren's write up.
What should be done is the loser of the case should have to foot both the lawsuit fees, and legal fees to bring the trial to light. Court cases sure are expensive, and its unfair to both thos plaintiff and defendant to dish out monies for it. Remember a defendant is guilty until proven innocent, and in most cases it would be Davy being sued by Goliath, so since the burden of proof would lay on Goliath's shoulders, they should be the ones to foot the bill for the legal case until the matter is resolved. Afterwards should Davy lose, well then the legal fees would be paid along with whatever else.
Just my two cents on it all.
Want Root?
Bruce is going to be giving the following seminars:
I'm sure amidst all those talks, you could find him meandering about on the ship and corner him for some one-on-one.
No, I don't work for geekcruises.com, I'm just excited to go... :-)
-B
Ash and Hickory, straight-grained and true, make excellent bludgeons, dandy for the cudgeling of vegetarians.
From the letter, it sounds like Bruce is arguing this very well. "Hey IBM and HP, you've noticed that OSS is the goose that lays the golden eggs, and you're in the process of stealing a march on your competitors by being the first to make use of this. Well, this nasty software patent thing, as well as having very few net benefits for you people, may soon be used by your competitors to kill that goose. Therefore, you've got a direct and immediate interest in helping to dismantle this system, or protecting the goose from it."
He's showing them why it's in their interests to help us. Thanks a lot Bruce, and keep up the good work!
perl -e 'fork||print for split//,"hahahaha"'
I am not a big fan of requesting things from companies for using open source. Mainly because it seems to set a double standard. Joe user is allowed to use the software free of charge, but once the company uses the software, be it for there own use or in a product they are selling, they have to pay with patents or what not for it? Granted, they should pay for it, but forcing them to do it isn't the best way to go about it. For example, IBM is pushing Linux and paying for it by donating hardware and buying ad space and pushing the idea of free software. Let the company do what they will with the software, as long as they don't violate the license.
In time the company will donate back to the open source world, be it with advertising, hardware, or code, once there business model is based around open source software it is in there best interest to help it along. IBM is going to want to advertise the software they use. And they are going to want to hire programmers to help the project along.
People like the above poster and Bruce Perens make me wonder exactly where the notion of an Open Source Community and the concept of "we" comes up in this discussion. Bruce Perens does not represent the Linux kernel hackers, the Apache Foundation, the *BSD coders nor even the people that hack Slashcode. So on exactly whose behalf is he signing treaties with and who will enforce his end of the bargain?
I've previously told Bruce on kuro5hin that companies have no incentive to give up their IP and in fact will probably lose out on the deal (OpenSSH vs. SSH is a good example) and I'm yet to see a good counter argument for that. Also the fact that he has nothing to back up his threats to them with is also not encouraging. Here's an excerpt my reply to his post on K5 about that.
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Xenu loves you!
A relative of mine has a filtration business. They sell industrial filtration machines that are superior to all others. They patented the machines and the process. They had to hire a few patent lawyers to register the patents oversea as well. My relatives patents are the only thing which defend him from rich, established companies. When they attempt to use his methods, he takes 'em to court. If he didn't, the huge companies would be able to undersell him until he went under. If he didn't patent the method he developed, he would be working for one of the companies, instead of having his own company today. Patents protect the weak as well as the powerful. While my relative could have rolled over and made his patent available to everyone, and not gotten a cent for the years he spent developing his ideas, he prefered to be able to control and develop the idea that he created. If he had not chosen to patent his idea, someone else would have taken the work he did and used it for their own profit. Open source does not cover: food, lodging, computer, utilities, car, entertainment; UNLESS these are shared as well, and not hoarded by a few, then open source is a pipe dream.
In the distance you hear an ominous moo.
The five arguments Bruce puts forward are weak. If he wants to make progress, he will need something stronger. Here are some counter arguments; those who wish to help Bruce may want to find arguments that defeat them. (Note that denial or ranting is not going to give him anything he can take into the meeting.)
constitutionally unjustified: this may be something that you could use in the US legal or political systems, but why should it influence multinational companies? It is not their business to interpret or enforce the US constitution, they just operate within the law as interpreted in the courts.
isn't the computer, not its software, the thing that should have been patented? Why is it wrong to be able to protect a new idea implemented as a pattern of digits, but right to be able to protect a new idea implemented as a pattern of metal or plastic? It is the new idea that is being patented, the preferred embodiment being in software is not the real issue. This is where all the generalised argument against an ill-defined concept of "software patent" will be easiest to take apart.
The 20-year term it may be true that the particular embodiment will be obsolete, but the idea could well still be very valuable. If the idea is not valuable then the patent does not matter because nobody is using the idea, and the holder is paying the patent fees for no benefit. If people still want to use the idea in a new implementation, then it is still valuable and clearly not obsolete.
The monopoly ... anti-trust laws this is much like the constitution issue, this is a matter for the political and legal system, why should the companies be doing anything themselves?
U.S.A. Tax if other countries change their patent laws, then US companies will have to start paying holders of patents in those other countries if they want to use the ideas there. Making the patent law the same everywhere could just as easily reduce the dominance of US-based patent holders.
Remember that "hundreds of anonymous people don't like it" is not much of an argument to take into a meeting with companies that are making a lot of money out of their patent portfolios. Don't just say you think patents are evil, think of some better arguments than the ones Bruce started with.
Actually for the last 8 years IBM has been granted more patents then any other company. Last year it was granted 2800 patents.
IBM got $1.5 billion in profits from licensing patents last year.
So getting IBM to give up patents could be a hard sell.
I wonder if it is possible to "GPL" a patent.
Maybe allow a patent licensed for free as long as the software it is used in meets the free and/or open software definition.
What a relief. We haven't had a patents discussion in almost three days. I was starting to twitch.
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Bleah! Heh heh heh... BLEAH BLEAH!!! Ha ha ha ha...
I think software patents are a bit of a misnomer... algorithm patents would better describe the concept, wether they are implemented in hardware or software is entirely besides the point (and courts will not recognise the difference IMO, because that would make it trivial to avoid any algorithm patent by implementing enough of it in low level configurable hardware).
My favorite quote is the part about Stallman refusing to allow public access to this "summit". Firstly, who is Perens to summon such a summit, and secondly, who is Stallman to dictate terms? Per the GPL, if you release code and people use it, those users are bound to release code to THEIR users. So if you purport to represent a movement, you'd better let the movement have its voice too.
I want to delete my account but Slashdot doesn't allow it.
(Sheesh...lost my password again...)
One important claim made in the article is that software patents aren't generally enforceable. While that might be true in theory, I wonder how it actually works out in practice? Consider these 1999 statitics for the U.S. Patent system as a whole:
Average monetary award by a jury in a patent infringement case: $8.6 million
Average monetary award by a judge in a patent infringement case: $9.8 million
Percentage of lawsuits which are settled before trial: 61.5%
Average reported* out-of-court settlement amount: $39.6 million
* Many smaller settlements are not reported.
Patent owner's success at trial: 76.5%
Percentage of patent infringement judgments which are appealed: 51%
Success rate of jury cases after appeal: 61.7%
Success rate of judge-alone cases after appeal: 74.1%
(Source: Patent Enforcement and Royalties Ltd )
The interesting numbers to look at are the success rates of IP owners in successfully getting their patents upheld in court. Now this doesn't break out software patents by themselves, but the overall statistics are pretty much in favor of the IP owner. Food for thought.
Jared
LPI
Still worried about deploying Open Source Software? Consider this: The Ark was built by amateurs; the Titanic by professionals. Which would you have rather been on?
Check this license out.
Victor Yodaiken chose to license a patent for use in software released under version 2 of the GNU GPL. The net effect is less freedom than mutual defense or simply publishing the "invention" to serve as prior art.
I respect the contributions of people like Stallman and Perens, but their egos tend to keep me at a distance from their "cause." I like the idea of free software; I release code under the GPL -- but I do not consider Perens and Stallman my "leaders", nor do have I granted them to right to speak for me.
Perens and company preach about noble goals embodied in free software -- yet they only seem to want information to be "free" when they have dictated the terms of that freedom. This closed meeting violates the spirit of free software. I smell hypocrisy in their words...
How much real code have Perens and Stallman contributed to the free world? I look at freshmeat and other repositories, and I see many, many names, from many countries -- yet Perens and Stallman get to decide who gets to speak for all of us, and they couch their cause in terms of a nation that does not encompass us all. Much as I love my country and its Constitution, I am disturbed by the insular attitude of Perens statement.
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Scott Robert Ladd
Master of Complexity
Destroyer of Order and Chaos
All about me
Thanks
Bruce
Bruce Perens.
Let me explain why this is a concern. Suppose Company X makes Product A. Company Y competes with company X by making Product A and also makes Product B, which provides the bulk of its income and finances the development of its competitive Product A. Company X can sabotage Company Y by fostering the development of an open source equivalent of Product B so as to cut off the revenue Company Y needs to compete with it (and, perhaps, to survive). Its "air supply" -- to use the word of Microsoft executive Jim Allchin -- has been cut off.
This isn't an abstract example. In the early days of the Windows environment, Microsoft destroyed Quarterdeck, which made DESQview, by giving away a free knock-off of Quarterdeck's QEMM memory management software (which was used to support its GUI and multitasking development). The result: Quarterdeck, without a "cash cow" equivalent to Microsoft's MS-DOS, could not compete. DESQview -- the best multitasking environment available for PCs at the time -- and DESQview/X -- a brilliant GUI based on X Windows -- died because there was no money for their future development.
While Microsoft's free equivalent didn't happen to be open source, it very easily could have been. (In fact, had Microsoft not been rich enough to bankroll its QEMM equivalent itself, it might have been the only practical way to go.) In any event, it always takes much less effort and money to develop a knock-off than the original, because Quarterdeck blazed the trail by developing the technology and feature set, solving all of the knotty technical problems, and dealing with the tradeoffs that are always inherent in new products.
Richard Stallman and others have specifically touted open source as a way of attacking companies they do not like (which, in the case of RMS, includes any company that publishes commercial software -- even those which, unlike Microsoft, act ethically).
To prevent larger companies from copying their work and wiping them out -- and to prevent open source from being used in a predatory and unfair manner against them -- companies that develop new technology need to patent it. This is precisely what patents are intended to do, and they're especially urgent in an age where open source can be abused to prevent people who honestly advance the state of the art from being rewarded for their labors.
Richard Stallman once told me, personally, that one of his motivations for opposing software patents is that they would make it more difficult for the FSF to "wipe out" (his words) commercial software. Stallman's statement underscores the danger.... And the need for software patents. We might argue about the optimal length of these patents (there are many merits to the argument that 20 years is too long), and that some of them should not have been issued due to obviousness or prior art, but few of us with a sense of justice and fairness would say that open source should be allowed to be used as a weapon in a malicious agenda.
If you've heard Bruce speak, or read his writing, you know that he shares some of RMS's animosity toward commercial software companies and frequently rattles his saber, "demanding" that they forfeit their hard work. Could this be the reason he opposes software patents? Just food for thought.
--Brett Glass
While it is interesting to think about getting software patents thrown out as being unconstitutional, the reality is that there are large vested interests that want to keep them.
The more important issue is that people who contribute to open source software do not have an umbrella corporation to protect their assets in the event of a patent infringement conflict. Thus, when an individual OSS contributor gets a "cease and desist" letter for patent infringement, there is real motivation for the indiviual contributor to come to terms.
One possibility is to create a corporation in a country outside the United States that "owns" open source softare. The primary purpose such an OSS corporation is to shield the assets of individual OSS contributors. If this OSS corporation is incorporated in a country that does not support software patents, a patent infringement suit gets pretty interesting.
I was entertained by your reference to my animosity for commercial software companies. I am a member of the top management of HP, a commercial software (and hardware) company with 84,000 employees. HP asked me to come on board to help them be a good partner with the Free Software community, not so that I could "rattle my saber at them". Being a partner means you give some, and you take some. That's quid-pro-quo is what I'm talking about in the essay.
Regarding the use of Free Software "as a weapon", I think the word you are searching for is "competition". Software patents improperly and unfairly block competition.
Bruce
Bruce Perens.
I can call a summit, and folks will show up. Someone had to call the meeting, it's too important to simply not do anything about the situation. I am the one who made the decision to close it, as the kernel summit was closed, and that's GPL stuff too. I used RMS' logic for justification, but I made the decision because I did not see us getting an agreement any other way.
Thanks
Bruce
Bruce Perens.
If you study the history of large companies, you will find that while they intend to behave in their own best interest, the reality is that they often fail to do so. Many large companies are the victims of software patent rip-offs, rather than perpetrators of the rip-offs. For this reason, I have some support within those companies.
Remember that I am also part of the top management of a computer company with 84,000 employees. There is actually some support within that company for my ideas.
Thanks
Bruce
Bruce Perens.
Second I forwarded your comment to some folks in the Linux division who can help.
Thanks
Bruce
Bruce Perens.
Bruce
Bruce Perens.
Thanks
Bruce
Bruce Perens.
I wrote
The word only does not appear in that sentence and the reason given is not meant to be exclusive.If this were a school paper or one I was writing to submit to a research journal, it would have lots of footnotes. But it's neither. It's political writing.
Thanks
Bruce
Bruce Perens.
There is a partnership in free software, in which the people who make money from the software return value to the community in the form of more free software or services such as a free FTP server for a project or a loaner IA-64 machine so that Debian can do a port. IBM and HP already do this stuff. Helping us with patents fits in there, too.
Thanks
Bruce
Bruce Perens.
Maybe I should have explained that in my article.
But disclosure doesn't help us much if we can't use the principle for 20 years.
Thanks
Bruce
Bruce Perens.
Your "quid pro quo" is not a fair exchange; it is blackmail -- similar to an old fashioned "protection racket." Perhaps it would be a good idea to publish a transcript of your speech so that people can understand this.
--Brett Glass
Bruce
Bruce Perens.
--Brett