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.'"

Comments

Re:A question I've always had...

[dirk]

While you are correctly ou can't "call it back", they can make it illegal to use. If I release software X, that infringes on a patent Y, person or company Z (remember, not all patents are held by big companies) can sure me over my software. If they win, it was essentially illegal for me to release my software, since I didn't have the rights to patent Y. So at that point, the software I wrote is no longer under the GPL, as I didn't have the rights to release it. So it essential null and void. It would be like stealing the source of Windows and releasing it under the GPL. You can't stop people from trading it, but it still isn't legal, since you didn't have the right to distribute it in the first place.

Re:No money issue?

[Beryllium Sphere(tm)]

>Fortunately I'd suspect that if some open source project had a big company (say Sun or IBM) backing it, I doubt this whole thing would be a problem.

But if IBM settles with $PLAINTIFF by a cross-licensing deal, independent developers are left out in the cold and $PLAINTIFF can still shut them down.

Re:A question I've always had...

[Anonymous Coward]

If the company will outsource to India or elsewhere, why would they balk at running software remotely to get around patent laws?

Re:It's not about the royalty checks

[hgolden]

pongo, patents allow the patent holder to prevent the end user from using the patented invention. It is a violation to use a patented invention without a license from the patent holder.

Note that this is different from how copyrights work. Once you have a copy of a copyrighted work, you have (at least in the United States) certain "fair use" rights.

So, in theory at least, a patent holder can sue an end user to prevent him/her from using the patented invention without a license, and the patent holder can obtain an injunction from a court to forbid use of the patented invention by an unlicensed end user.

Re:It's not about the royalty checks

[Anonymous Coward]

Well, perhaps not the "end user", but the "customer" of the software is at risk. But note that using proprietary software doesn't help you in this regard. In the bottom of The Fine Article is a very interesting comment of Cognos getting nailed for almost two million dollars just because Microsoft infringed on some patents.

Don't assume that you are safer using Microsoft (Score:2)
By NZheretic (504) <{heretic} {at} {ihug.co.nz}> on 2004.07.26 9:55 (#96153)
Developers and users of proprietary software also face a similar risk from the patent threat.

An example of this is Microsoft's licensing of patented technology for only itself without granting the right for end users and developers to use the same patented technology. Microsoft licensed Database/Datawarehouse technology from Timeline Inc, but unlike Oracle and other database vendors, Microsoft chose a license that did not grant Microsoft's customers the right to fully use that technology [theregister.co.uk]. Timeline has extended it's patent claims to cover many featured widely used by developers [winnetmag.com], both ISV and in house.

Timeline Inc has won a US Washington Court of Appeal judgment against Microsoft [tmln.com] for the right to sue Microsoft's customers, and subsequently sued Cognos. On February 13, 2004, Cognos settled at cost to Cognos totaling $1.75 million [timeline.com].

In a lot of ways you are better with GPL licensed techology [newsforge.com], which effectively grants all downstream users the right to use the patents from upstream developers under the terms of the GPL [gnu.org].

Software Patent are bad but are also pushing interesting trend

At least with open source you could look into what you're getting into. With proprietary software you never can be sure.

Re:It's not about the royalty checks

[fanatic]

There is likely a higher statistical probability that the use of Microsoft products would create "future legal headaches."

3 words: Timeline v. Microssoft.

A real case where a real court found that real users were infringing Timeline's copyrights and/or licenses because they used code they recieved from Microsoft the way Microsoft told them to. Not bulls*** like the SCO "cases".

Re:disagree, this will become a war against FOSS

[Ogerman]

If open source can produce a product that competes with a multi-billion dollar company's product, it can pool its resources to generate patents. We should find a way to achieve this goal.

It's not that we couldn't, but it would be against our values. Software patents are plainly wrong and it is very reasonable to think them unconstitutional. If the Open Source community started grabbing for patents, we'd be legitimizing software patents and might even help to encourage their adoption outside the US!

Re:Big company, little company

[Halo1]

Do you hear about IBM threatening small companies all the time using (software) patents? No. Does that mean they don't do that? Hell, no!