Slashdot Mirror
Why Consider Linux Kernel Patent Risks?
chromatic writes "After the hoopla about OSRM's study of patent risks in the Linux kernel, I talked to Dan Ravicher, the patent attorney and free software afficionado who conducted the study. Contrary to my initial reaction, I've come to believe that the study is actually very valuable. Linux and Patent Risks on the O'Reilly Network explains why."
Visit Tim's Journal, yes?
Linus owns the trademark to the kernel, but not the copyright, except for the portions he wrote himself. As far as I know, Linux does not require copyright assignment as a condition for code inclusion.
Copyright != Patent != Trademark.
No weapon in the arsenals of the world is so formidable as the will and moral courage of free men.-Ronald Reagan
It seems to me that an individual with ordinary skill in the art of developing software, coming up with a patented solution to a problem, poses as much a problem for the owner of a patent as it does for the individual developer.
One of the requirements for granting a patent is that it describe an invention or process that is nonobvious to one skilled in the art...
Even proprietary vendors make their source code available to important customers "to conduct security reviews of the products" - why shouldn't they do the same for Intellectual Property Rights?
Furthermore, you could have third-party auditing companies provide that service in the same way they audit other confidential information such as company finances.
Also, thanks to Groklaw, I learned about this thing called Promissory Estoppel that would pretty much stop them from bringing a patent suit at this point.
One problem with the U. S. Patent system is that looking for patent violations in your source code makes you liable for charges of willful infringement. I'd be surprised if any companies actually did this.
how to invest, a novice's guide
-
If somebody decides to sue Linux for copyright
infringement, who defends it?
IBM, Apparently.Bruce
Bruce Perens.
Bruce
Bruce Perens.
They can't enforce their patents against each other except in unusual cases. MS contract with HP allows MS to enforce against HP in regard to specific free software, as we learned in the infamous memo, but that memo is all that we know of the MS-HP cross license. We do not know of any similar carve-out that would allow HP to enforce against Microsoft.
Bruce
Bruce Perens.
Also, the international treaties covering patents are still evolving (there's a bunch of 'em -- not just WIPO but PLT, PCT, TRIPS and more I'm sure I'm forgetting), so it's still necessary to check out the local laws.
Huh?
e ns ource/linux390/linux-2.6.5-s390-06-april2004.shtml
http://www10.software.ibm.com/developerworks/op
Click on the "Download" button and you have to agree to the GPL code.
Section 7 on patents is there too.
The surprise isn't how often we make bad choices; the surprise is how seldom they defeat us.
Most other companies could not offer to pay their own indemnities, and many of them believe this is covered by their liability insurance when that may actually not be the case.
So, I think it still turns out that code that is open for all to view is better.Bruce
Bruce Perens.
As far a I know, MySQL is also offered with GPL licensing.
It is offered under GPL *and* non-GPL licenses. Which was *exactly* the reason I used it as an example.
(Before I go on, bear in mind that IANAL). MySQL AB own the copyright to MySQL (AFAIK); thus they can release it under the GPL. All changes made to the GPL-licensed version are thus also GPL, and, unless all the authors of the new code get together with MySQL AB and come to an agreement, the branch of the GPL licensed version is GPL-only.
However, MySQL AB retain the right to the original version they wrote (and all branches that exclusively include their code, I'd guess); thus they can offer it under a non-GPL license.
Now, re: Linux. Let's assume that Linus doesn't own copyright on anything he didn't write. Unless all the authors (i.e. copyright owners) of a particular branch of the kernel agree, that kernel can only be released under the GPL. However, if, someday in the future, Linus received all the copyrights, he would have the copyright for the whole kernel and thus the right to offer Linux under a non-GPL license.
This won't happen, of course- too many people own the copyrights- but if Linus had insisted from the start that he (or someone) was assigned the copyright to all the code in the kernel, then, even if that code had previously been GPLed, that person would have the right to offer a non-GPL version of Linux.
This would not prevent use of the GPL license, but it *would* allow people to obtain Linux without the GPL.
This is all academic, obviously. It won't happen, because too many people own the Linux kernel now to get together and agree to let this happen.
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).
Well, in the U.S. it isn't necessary to figure out who is responsible for the infringement before you decide who to sue, because the patent title says that use is one of the infringing acts you can sue for. This is why there is even a question that users can be sued, we would just love to have a court rule that they can't be.Bruce
Bruce Perens.
You are talking about the Doctrine of Laches. Look it up on the web. Generally it takes a 6-year delay of prosecution, although it has been won for less and lost for more. It's not easy to win a laches case. You can lose your shirt while doing so.
Bruce
Bruce Perens.