Slashdot Mirror
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.'"
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?
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http://acostas.org
...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?
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?
My rights don't need management.
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.
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.
The race isn't always to the swift... but that's the way to bet!
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.