IBM Has 'No Intention' of Using Patents Against Linux

bendelo writes "In his keynote address on Wednesday at LinuxWorld, IBM Senior Vice President of Technology and Marketing Nick Donofrio assured the Linux nation his company would not assert its formidable patent portfolio against the Linux kernel and strongly advocated others to promise the same. This comes following an independent study by insurance firm OSRM who revealed this week that the Linux kernel might use up to 283 patented methods. This seems a smart move by the Big Blue to help counter the FUD going around." A zdnet.com.com story has a response from Bruce Perens, who basically says he wants to see it in writing. :)

Comments

In writing? Here you go

[Anonymous Coward]

IBM has no intentions of using patents against Linux.

I don't understand...

[Enigma_Man]

I mean... it's a very nice gesture and all, but if this is where we're headed, what's the point of software patents at all? Making exceptions to rules generally nullifies the power a rule has.

-Jesse

Re:I don't understand...

[Durzel]

Commercially IBM doesn't have anything to fear from Linux, and in fact its current business model would suggest it has everything to gain from ensuring that it is looked upon favourably by pro-Linux parties.

The only real difference in this case is that IBM is using its software patents as a means to paint itself as "the good guys" (take note SCO), which is every bit as commercially viable as the more traditional litigious application of software patents.

Re:I don't understand...

[Otter]

IBM, and most other huge engineering companies, have enormous patent portfolios (not just software patents) that they mostly carry for defensive purposes. This works since they're basically all probably infringing on each other, and the patents serve as a sort of Mutual Assured Destruction.

That's why the real headaches come from patent suits from companies with no substantive business of their own to lose.

Re:I don't understand...

[danheskett]

which is every bit as commercially viable as the more traditional litigious application of software pat
That's a completly moronic 1990's style notion.

While things are good, having the goodwill of the "linux community" might be all good and great.

What about next time IBM is rasping for cash revenues? It's easy to make rosy promises when times are good. It's hard to follow them when roses turn to crap.

Having the love and support of 500,000 volunteer Linux nerds is a good thing, but don't think for a minute that IBM wouldn't trade that in for cold hard cash if they were facing a very bad economic outlook.

Re:I don't understand...

[MartinG]

There is no positive good in software patents. The only use they have is in killing off competition and maintaining a monopoly.

Real innovation in software is not in ideas or "inventions" (which are easy) but in implementations. (which is of course covered by copyright law already and works well when enforced)

Hopefully if the lawmakers see people like IBM doing things like this and in the end realise the system is broken and eventually do something about it.

Re:I don't understand...

[Enigma_Man]

Which brings me around full circle to my main point... Software patents are being used for something other than what they were intended (companies amassing huge libraries of patents, for Mutual Assured Destruction, as you put it, or those less ethical companies that amass patents solely to lord over them, and take money from those who may tread over the boundaries). This forces us to examine the entire patent system. Is it right, fair, morally just to give a monopoly to something/someone for any amount of time, be it a hardware good, or a software program? Patents (from what I understand) originally used to be used in exactly the manner for which they were intended. It gave more benefit to R&D, because your efforts were rewarded with your short-term monopoly on the results of your R&D. It was sort of a "government sponsored" general R&D effort. But nowadays, less-ethical marketers and the suits have figured out that they can heap patent upon vague patent, and make money via the legal system, instead of through actual R&D. In the meantime, the people trying to do it the old way (reward through innovation) are getting trod upon.

-Jesse

Re:I don't understand...

[stevesliva]

Mutual Assured Destruction

More like Mutually assured licensing. IBM: Hey Intel, you're using our transmogrifier! Intel: But you're using our bandersnatch! All together: Let's cross-license!

Lawyers: Phew. That'll be $167,456.

Re:I don't understand...

[darkmeridian]

If IBM later reneged and sought to enforce these patents, I would argue promissory estoppel. If you make a promise not to pursue a legal claim, and people take harmful reliance on it, then you are barred from later bringing these claims.

Re:I don't understand...

[mrchaotica]

No, you've got it backwards: patent is a bad fit; code should be copyrightable only. Copyright covers the implementation, not the algorithm, which means that plagarism is disallowed, but implementing the same idea with your own code is allowed.

The idea of treating the code as an "object that works" breaks down when you consider that code is mathematics, that it has to perform certain functions, and it has to interoperate.

patenting a software algorithm is like patenting "the process of traveling from point A to point B" - it would be absurd to patent that instead of a method to do so, in the same way that it would be absurd to, say, patent "a method of decoding LZW-compressed data", because if it is patented, then people can't use LZW compressed data in the same way they can't get from point A to point B -- it cripples interoperability. In this case, copyrighting an software implementation of an idea (such as LZW) is analogous to patenting a hardware method (i.e. implementation) of transportation (such as a car).

You can't patent a mathematical idea (e.g. the LZW algorithm) any more than you can patent the idea of traveling.

Re:I don't understand...

[Anonymous Coward]

Disclaimer: I am a lawyer but I don't play one on TV.

I doubt that promissory estoppel would apply in this case for two reasons. Firstly, IBM are making the claim to the linux community as a whole which we can assume is very large. Therefore, it can be assumed with some assurance that some part of the community are unaware of this promise and should act as though the promise was never made -- don't infringe on patents. The portion of the community who are unaware of the promise would be open to prosecution at least and it is arguable that the community as a whole would be liable too.

Secondly, promissory esoppel only applies is the promise is "reasonable". In this case, it is hardly reasonable to expect IBM to not prosecute in the future because their primary goal, by law, is to maximise profits for their shareholders. If it becomes apparent that brandishing their patent lawyers against the Linux community is a profitable action, then they are compelled to do so.

These nebulous scenarios can be avoided by incorporating "Linux" and asking IBM to draw up a contract, officially liscensing these patents for use in the kernel. However, by doing this you would also be creating a body which would attract lawsuits from other quarters. The best thing to do in this situation (and this my professional advice) is to keep the community as it is, treat IBM and the other corporations who seem to be playing nice as potential threats, and finally hold our breaths. (You can do the latter incidentally even if you aren't a well endowed woman with a lisp).

Read -all- of the statement

[pedestrian crossing]

IBM has no intention of asserting its patent portfolio against the Linux kernel, unless of course we are forced to defend ourselves (emphasis added)," said Nick Donofrio...

Re:Read -all- of the statement

[Oddly_Drac]

"unless of course we are forced to defend ourselves"

Is that 'defend' in terms of responding to attack, or defend as in 'bombing the shit out of Iraq'?

the Linux nation

[Anonymous Coward]

where is it, i wanna move there, geographically speaking

I agree with Perens

[trybywrench]

I agree with Perens, I'd like to see it in writing as well. Everyone likes riding on the shoulders of IBM as if they're some savior. You can almost here the oss fighters telling themeselves "finally, a big guy in the corner for the little guy fighting for the cause".

clue for the clueless, IBM is in it for IBM, if the tide ever changes and oss's destruction becomes favorable for IBM don't expect any mercy.

Makes Sense

[wackysootroom]

IBM cannot assert any of it's patents against linux, since they:

1. Contributed to the linux kernel
2. Would look very silly and incongruent for going against something it uses to make money

This is just counter-FUD to keep IBM's linux customers satisfied.

Re:Makes Sense

[Wudbaer]

Welcome to the real word. What IBM might say:

1. Contributed to the linux kernel

"When we contributed to feature A we didn't know someone implemented feature B violating our patent xyz thus damaging our vital business interests on the field of whatever.

2. Would look very silly and incongruent for going against something it uses to make money

There are more than enough examples of companies doing a 180 degree turn in their business strategy, IBM itself being a brilliant example.

A promise?

[Manip]

Everyone who has ever owned or worked in business knows that a promise is nothing... Business is all about contracts, IBM might have well not said anything at all. What they need to do is sign a contract with FSF or some other big open source software org.

Re:Having it writing?

[molarmass192]

So if they do drag you into court over it, you can nail 'em over the head with their written statement. Words hold surprisingly little power, especially something intentionally open ended like "no intention". I may have "no intention" of suing you, but that doesn't mean I can't wake up tomorrow and decide to drag your ass into court as I'm downing my first cup of coffee. However, if I gave you a written statement saying that I wouldn't, I have basically no chance of getting that written statement thrown out.

The road to hell...

[SunPin]

is paved with good intentions.

Karma (the real stuff) is governed by intention. IBM has generated a lot of good karma with their work with Linux. This speech seems like IBM knows that a huge shitstorm is on the horizon and they want to polish their image before it hits.

As good as a handshake?

[Telex4]

Bruce Perens ... basically says he wants to see it in writing

Well quite. What reason have we got to trust IBM? Just because their current business interests are tied in with the Linux kernel, it doesn't follow that they're never going to attack any Free Software project with patents. They even added the proviso that they won't attack the kernel "unless, of course, we are forced to defend ourselves"!

An executive making a promise like that at a trade show is more or less meaningless. Now if they signed a legal agreement with the Free Software Foundation promising never to attack any GPL-ed project, or even just with the kernel guys, there'd be something to celebrate here.

And of course the wider issue is that they should lobby against software patents full-stop; they damage Free and proprietary software alike, mostly affecting small and medium businesses and community projects. But of course IBM is never going to do that ;-)

Already protected by the GPL?

[The Wicked Priest]

The GPL, which IBM has accepted by distributing Linux, seems already to prohibit them from asserting patent claims against Linux users. No?

IBM to fight for Linux?

[cornice]

Patents in the past have been used mostly defensively. Most large companies either had mutual agreement to share patents or they went ahead and used the patented ideas of other companies knowing that the other companies used their patented ideas too. Thus the result of a lawsuit would be a wash. Now with MS and IBM building such huge patent portfolios it's getting a bit scarry for Linux and other Open Source projects. This announcement is encouraging, however. With Big Blue's huge patent portfolio (and Novell's) it could actually take on Microsoft on the behalf of Linux. In effect Big Blue would step in whenever a lawsuit was threatened and say to Microsoft, "Back off or will prevent you from using this IP which you have incorporated into X, Y and Z products." Why would they do that? Because IBM now needs Linux. Linux is one of IBM's OSs now and it has to defend it. The big question the is whether IBM could somehow hijack Linux using IP. Could IBM become the only vendor legally capable of delivering a useful version of Linux. Sure it would cripple Linux in the long run but Big Blue isn't known for being smart all the time.

Formally enacting the terms of the Linux GPL

[NZheretic]

It's time to take a release of the 2.6.x Linux kernel and get the CEOs of IBM,Sun,Novell,Redhat,Mandrake and any other organizations who which to join in, to distribute a copy of the source of the Linux kernel to each other and to Linus/OSDN for a token monetary amount. This would formally enact the terms of the GPL license, which effectively ensures that upstream distributers grant an implicit license to downstream recipients to use any intellectual property, patents or trade secrets the Linux kernel uses under the terms of the GPL.

Disadvantage

[Short Circuit]

That does seem to be a disadvantage to how Linux development is organized. If IBM were to put it in a written contract, who would the other party be?

I'd like to see Linux become owned by a non-profit that's run by the community members. Or something. Give Linux a legal presence.

Re:Disadvantage

[phoenix.bam!]

That would also give patent holders a target for lawsuits.

Re:Disadvantage

[Short Circuit]

It's a double-edged sword, sure. But I think the advantages outweigh the disadvantages.

Remember Microsoft's hypocritical FUD about "Who's liable for Linux?" How about the situations where the community can't sue for slander or libel? Or other situations where the community can't make it's voice heard in the legal system?

The concept of a class-action suit doesn't work in this case, because Linux developers aren't financially harmed by such things. (I've never heard of a class-action libel or slander suit. Is there a lawyer in the house who could describe if that's possible?)

Just saying it doesn't cut it...

[rben]

If IBM really doesn't intend to use it's patents against Linux, IBM should take the necessary legal steps to make it impossible for it to do so, such as giving a non-revokable perpetual license to Linux to use the specified patents. If IBM is serious than this will only cost them some lawyer time to draw up the necessary papers. It will also protect them from someone else saying "Well, they didn't object to Linux using their patent, so it shouldn't apply to me either.

IBM might currently be one of the good guys, but it wasn't so long ago that IBM was the big computer company we all loved to hate. Management and business models change. When they do, as we've seen with SCO, companies past promises get thrown out the window.

Here's hoping that IBM makes good on this promise and sets a real example for other companies to follow.

Re:In writing? Here you go

[Anonymous Coward]

Seriously, we need it in writing ... Unisys said the same thing (in writing) about GIFs and backtracked.

CEO's change etc. Make up of companies change. Even a written statement could easily be "reinterpreted" etc. by highly paid lawyers.

But still .. having it in legal writing is better than nothing. And right now we have nothing.

Prens Shouldn't Bit The Hand Feeding Him

[ausoleil]

The F/OSS world is built largely on trust. We could debate contracts, indemnification and other legal instruments all day, but at the end of that day, Linux and other major F/OSS project circle right back to trust.

Bruce Perens would do well to remember all that IBM has done for Linux, from a technical standpoint, to a marketing one, finally to a legal one. Had SCO chosen a smaller company, say a Red Hat, they would have had a far better chance of winning their lawsuit - because lawsuits come bak to money, and with Microsoft's filthy lucre in their vaults, SCO would have had more than Red Hat and thus a better chance in court. Instead, it was IBM that committed the resources, legal, financial and corporate, to keep Linux alive.

That said, their intention is clear -- IBM wants Linux to succeed and to become a major player in at least the data center. It has, and with the numerous and important contributions to the kernel and other ancillary tools, Linux is now close to being the equal of the evolved UNIx's -- Solaris, for example. Without IBM, would Linux be much more than a small server or hobbyist's tool?

IBM's word is good enough for me for now. Sure, I would love to see their promise etched in stone, but their word has been good before, we should believe it good now.

Finally, about their reservation of their right to sue, if they need: let's not forget that IBM also makes closed source software. They should preserve the right, should they need to use it, to prevent a competitor or even business ally from contribution of proprietary code to the Linux base. After all, even though IBM is a great friend of Linux and open source generally, they also need to preserve other revenue streams. All that they said was that they would do just that, and that's not a bad thing in my view.

Thanks, IBM, for saying you wouldn't hammer Linux with your wide portfolio. I hope it puts pressure on other companies to do the same. Microsoft would do well to follow suit -- they have benefitted from OSS whether they want to admit it or not, and they should not try to kill what has fed them either.

Re:I'm shocked

[LordKaT]

While other posters have pointed out that this is about IBMs bottom line, I would like to point out that this is about IBMs bottom line for the long term. IBM could easily crush Linux in endless court battles, and "win" the rights to Linux, and gain - in the short term - whatever money they can gain; however, by pledging not to patent-slap Linux, they're also making an investment in their bottom line: Linux can continue to grow and mature, therefore, IBMs business can also grow.

Don't ever fool yourself: a business is ALWAYS about the bottom line. IBM just happens to plan beyond the next Quarterly report.

It's not FUD, there's a clear and present danger..

[d_jedi]

this seems a smart move by the Big Blue to help counter the FUD going around

FUD, "fear, uncertainty, doubt" generally is used in the context where said fears, uncertainties, and doubts are unwarranted.

However, in this case, the danger to Linux is very, very real. Of the 283 patents Linux potentially infringes upon (220 or so once you remove IBM's), there is a very high likelihood that at least a few of them will be completely valid, and that they'll (distros, users, developers, etc.) be sued. Just think of SCO, only with valid claims this time.

The current "ignore the problem and hope it goes away" attitude of many of the core Linux developers (this includes "show us the code, and we'll remove it") does not help. They (developers/distros) should be proactively attempting to remove any patented code (or, alternatively, challenge in court/patent office, or get a license)..

For hobbyists and home users, Linux's patent troubles aren't significant, but for any government of large company considering adopting Linux, it's a very big issue.

Re:In writing? Here you go

[AviLazar]

Yup, they have "no intentions" - which does not mean that they will not do so in the future. While I am not saying that IBM is being sneaky and trying to lull people into a false state of safety - it should be noted that "no intentions" means just that - they are not intending on suing...which means it could change

Love that phrase "no intention"

[ewg]

You've got to love that phrase "no intention".

Hearing makes me want to reply

• I have "no intention" of striking you in the solar plexus
• I have "no intention" of keying your auotmobile
• I have "no intention" of dishonoring your sister

I understand why it's used: the person talking cannot speak authoritatively for the organization.

Still annoying, though.

Re:In writing? Here you go

[JWW]

IBM is betting the farm on Linux. The big statement here is the "strongly advocated others to promise the same" part.

I see that as a veiled threat of retailation if someone goes after Linux with patents. IBM stands to lose large amounts of money if they are unable to sell their clients Linux solutions.

Also, I strongly believe that IBM is Linux's only home of surviving the coming patent war. IBM will have to step up to the plate to defend Linux if Microsoft goes on the patent attack. I aslo belive this is why Microsoft hasen't attacked yet.

Another thing to look for is IBM's new processor. With this new core architecture being touted as revolutionary, they could patent the algorithms for basic processing of instructions on this thing and require every OS that uses it to pay roalties. That is a great deal of potential leverage for the future (along with being a good example of why software patents should be illegal).