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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.'"
When the Great Patent War commences next year, it won't be about getting checks - it will be about scaring people away from Open Source solutions to problems previously solved by proprietary products. The companies that will asserting the patents don't need and don't want the money - they want the products dead and customers scared off.
A voice of sanity on slashdot. I knew it was a slow day.
So the main reason it's not likely that an open source project will get sued is simply because they don't have any money. Unfortunately what would likely happen if they did sue is that it would cripple or kill that project. 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.
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.
Except much of the concern is not only paying out royalties, but being dragged through useless court proceeding after court proceeding by companies that find it much more to their benefit to drag OSS through the mud, and strike fear of legal action into the hearts of OS proponents.
There comes a point where it doesn't really matter if you win in court, particular if one hsa gone through a costly multi-year court battle just to be proclaimed "innocent" of any wrongdoing.
Its the fear factor to stop adoption (stop market loss not profit). I dont think MS wants royalties from OpenOffice, they want people to be too afraid to use it.
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
Its the cease and desist letters that come along first...
You cant get blood out of a turnip, but you can make the turnip's life miserable...
---- Booth was a patriot ----
While the points in the article show that patents aren't easy to use in order to scrub out OSS projects, I know plenty of people would simply fold when faced with the prospect of a long expensive legal battle with a team of lawyers who have funding that is, for all realistic purposes, limitless even if the leader of the open source project knew they were in the right.
If you write something that [big company] doesn't like, they sue and you have to either drop the project that's taking up time anyway or fight and risk a chunk of your own money then you are quite likely to pick the path that doesn't potentially leave you in the gutter, particularly if you have a family depending on your income and the program was just a little 'spare time' project.
The true legalities may not be too bad, but the big corporations have yet another way to threaten the little guy and I wish we could count on them to do the right thing and not abuse there cash reserves by draining people dry, but past experience shows that companies often don't have this kind of common decency.
...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?
There's a bug in the idea of doing patent searches.
To reproduce this bug, go through the following steps:
1. Look for patents in the area where you're working.
2. Find a patent which is related but not identical to what you're doing.
3. Continue what you're doing.
4. Get sued for infringement by the patent owner.
Expected:
Someone gives you credit for due diligence.
Actual:
Owner of related but not identical patent asks for triple damages for "willful infringement" using your knowledge of their patent as evidence. The threat of paying out three times as much forces you to settle unfavorably.
Mr. Rosen is a smart guy who knows about open source. (And I appreciate his "summary" at the end of the article, for those of us who never RTFA ;-). But I
find his recommendations a little hard to swallow.
1. Don't be too paranoid about the patent problem
The guys with the patents only have two hurdle to cross: writing the cease and desist letter, and writing the FUD press release ("Linux stole are technology"). This *first* step in patent litigition can kill an open source project, never mind the *last* step (getting the royalty checks).
Sure, maybe Mozilla and Apache will survive a patent attack. But what about a smaller open source project? The "guy in mom's basement". These guys will just pull their projects, regardless of the merits of the case.
2. Don't try to out-invent the big guys.
Don't try to out-code them either, right? Wrong!
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.
I bet many clever open source programmers can find all kinds of stuff to patent in their code.. do you use a checksum to save some computation? Use a clever algorithm to distribute work among nodes? Transfer data out-of-order to exploit some optimizable properties of data? Look in your code, start thinking in terms of patents. Keep your bar LOW. Even the simplest thing is patentable, as we have seen time and time again.
Take software licenses as an example: before the GPL, software licenses were an afterthought.. you just wanted to make sure you got credit. But the GPL is a tactical weapon that opened people's eyes to the issue of software licensing and the world of draconian EULAs we now deal with. Even if you don't like the GPL you must agree that licensing is almost as important as the quality of the code itself.
We need to have the same eye-opener when it comes to patents. Maybe one of the big guys like FSF or Apache should take the first step and start applying for patents. Start a "patent fund" to research and file the patents.
3. Conduct a reasonably diligent search for patents we might infringe.
Why? What do we do when we find a patented technology that has no substitute (like "1-click ordering", the best you can do is make it "2 clicks")? Might as well ignore them until the C&D comes. Let *their* legal departments do the work.
Design around patented technology wherever possible.
What if it's not possible? What if the patent depends on, say, some part of a public spec? Either violate the patent, violate the spec, or go home. But generally this is good advice. If you know you are violating a patent, come up with something better, if you can..
5. Identify allies who can defend us with their patent shields.
This is good advice. Find a company with a "patent promise" that they won't litigate patents offensively.
6. Withhold our software from those who sue us for patent infringement.
Uh, okay, that'll show em. Hey microsoft! Your license to distribute Linux has just expired! TAKE THAT! And how will "the guy in the basement" enforce this anyway???
Make no mistake, the bigco's (microsoft in particular) are salivating at the thought of destroying open source and painting them as "IP theives" all in one blow.
If the sky isn't falling yet, it will be someday.
I would add a #7 to his list:
Make sure the business world understands the value proposition of open source and software freedom. It's not about altruism or people sitting at home saying "I'd like to write a content management system today, for free". It's about talented people solving real business problems for their own benefit. It works in the free market because it *is* the free market. It's not anti-competitive, it *is* competition: you're as good as your code, and no better.
When microsoft tr
Part of Rosen's argument is based on the fact that patent suits are hard to win in court. The other part of Rosen's argument assumes that anyone using patents against open source is looking for money, i.e., royalty payments.
Both of those arguments fail when applied to Microsoft. Microsoft would never use its software patents to collect royalties. It would use them to make companies afraid to use open source and compel them to use Microsoft's products.
Thus, it does not matter if Microsoft's patents are valid or not, when a company gets sued, Microsoft will offer a deal similar to this: Stop using open source and buy our products.
The money monkeys in charge of the companies will fold because it will be more cost effective to simply buy Microsoft's products rather than risk losing at trial. After Micrsoft wins a few of these "settlements" open source will begin to look unattractive to anyone else considering it.
If someone says he and his monkey have nothing to hide, they almost certainly do.
Eli Whitney had a patent, but he couldn't sue the thousands who made their own. Also, lawyers will only go after the deep pockets, so if you are an infringer living in your parent's basement, they can't justify any action that loses them money.
The latest Slashdot meme.
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.
Although big corporations have very deep pockets, they also have something called a reputation that they value greatly. Attracting the wrath of IT managers throughout the world is no small matter to them. For this reason, their claws often remained sheathed.
Might I suggest that it's a new breed of company, small or mid-sized ones, whose very raison d'etre is to collect valuable intellectual property, that we have the most to fear from. They've got everything to win, little to lose, and they don't give rat's ass about their reputation.
One example - SCO. A near worthless organization (about $10 million in market capitalization) until they discovered they "owned" Linux. They have been accused of ties with Microsoft (there is some evidence through BlueStar), but I'm not convinced. The Justice Department is ever watchful these days.
A second example - Teleshuttle Technologies, subject of a recent post ( http://yro.slashdot.org/article.pl?sid=04/07/21/15 39205&tid=155 ).
Expect to see more of them as time goes by.
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!
And slashdot posters by and large get it right. Now there's something that doesn't occur every day.
A few points both have missed so far, though. One is that a methodical patent search is impossible; patents use such opaque and obfuscatory language (often deliberately) that there's no way you can search for a patent on any given technique you've been using. Further, it may be a submarine patent.
Prior art is largely irrelevant because the patent system is broken; the patent office doesn't seem to check it, even when the prior art is other patents (see, e.g. the LZW patent mess). Part of this is because patents (as I mentioned above) are essentially unsearchable. Prior art works when you've got deep pockets and the lawyers to overcome the assumption of validity. When you're Joe Open Source Programmer, you're screwed as soon as they file a lawsuit (assuming you had the nerve to ignore the C&D), regardless of how much prior art there is.
So, on his recommendations --
1) is good. Not because the patent problem isn't serious, but because there's nothing you can actually do about it. Like Global Thermonuclear War, you just have to plan for it not coming.
2) is pointless. Our own prior art won't prevent the patents from being issued
3) is a mistake. Each patent you discover is more work you have to do to avoid it, if that's even possible, and more chance of getting nailed for willfull infringement. Doing a patent search under these circumstances is like searching for mines with a metal probe.
4) is good -- if you happen to know about the patent, you should avoid it.
5) is fine, if you have allies you can trust. You probably don't.
6) Pointless again. So you terminate their right to use their software. They're either a litigation company which does nothing, a single-product company which is trying to force the world to use their product, or a giant megacorporation. The first two won't use your software anyway, and the last has the lawyers to spit on your termination agreement -- not to mention the programmers to replace your software if necessary. Terminating the rights of patent-users is a feel-good measure only.
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.
Comment removed based on user account deletion
Sun, being a UNIX house, is near the front of the line, but they won't be the last to lose with Linux. The best asset SUN has is its people. They need to leverage that into new solutions that are more than the common stuff we have today.
This is what Open Source is all about. We know how to build most of the software people need to use today. Why keep paying for that, when we could be advancing the art of computer science, or helping people make the most of exists now. Good OSS people can build complex, powerful solutions right off the net. They are worth paying for. Software companies can build new things that are worth paying for as well.
The fortunes of the big software houses were built on the general ignorance the rest of us had. Problem is they stopped innovating and began simply selling and locking in to keep their position. This benefits nobody really, including them, because the backlash from their overselling will tarnish their customer relations to a point where it might almost be better to let new companies, with a clue, step in and show how it should be done.
Linux and OSS will eventually force a new model. Open operating systems, standards, and applications will provide most of what people need. The software worth paying for will be new software that is tough to write, it will be new software that actually delivers its value in terms of its raw capability. Services will continue to be big as people understand they can pay for solutions that fit them, and perhaps only them, instead of boxed software stamped and sold by the billions. This is where IBM has it right, and also where SUN has some learning to do yet.
I will pay for software that is new, or that is difficult to write and maintain because those that do the work deserve it. Sadly, this does not fit most of what SUN and Microsoft and their partners package and sell today.
SUN still has a lot of very bright people capable of great things --they just need to buckle down now, while they have some position and cash in the market and really take things to the next level. They should do this on Linux and let the OSS community do the rest.
SGI, BTW is beginning to see some real success doing exactly this. Almost cost them the company because they were late to the party and had a very vulnerable position to begin with. SUN is in far better shape, they should have a good chance at keeping things that way, if they work at it...
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