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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."
If somebody decides to sue Linux for copyright infringement, who defends it?
Seems Linux will be one of the safest kernels from a (patent point of view) to run, since it has had the most companies scouring it's source code looking for infringements.
With the gloom of the patent infringement reports, the one bright spot is the Patent machines of IBM (and HP). It is doubtful that other major patent holders (MS) do not violate any of IBM/HP (and vice versa), so the threat of mutually assure destruction is the only seeming deterrent.
Who are the commies in this scenario?
I think you're confusing the notion of having a valid case versus actually bringing a case. You don't have to have a good chance of winning to file a suit. You just have to be stupid, arrogant, or really unfriendly.
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It's only a patent license for those who *distribute* the GPLed software. Linux is still vulnerable to patents owned by any company that does not release a distribution (and AFAIK, IBM does not.. but it would be stupid for them to try to enforce their patents, given their investment in Linux).
I am the maverick of Slashdot
>I would still like to know if anyone's audited the source code for any of the proprietary OS's for patent violations.
If they could be publicly audited for patent violations they'd be open-source, yes?
Steven
Did you read the article? Your post is full of inaccuracies.
Defending against a patent lawsuit is expensive and time-consuming. Sure, the courts throw out around half of all contested patents, but that means they uphold around half of all contested patents.
Unwitting infringement does not mean that the patent is bogus, it means that you can show reasonably well that you did not know that you reinvented something someone else had patented.
Where did you come up with the idea that patent damages include royalties?
Where did you come up with the idea that because you can't sue everyone associated with Linux you can't sue anyone? That's completely false.
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Patents are given out willy-nilly as we know from 'M$ 3000 patents' a year pledge.
Then to find a programmer 'unwittingly' coded something similar that treads on the patents' toes, it is beyond the financial means of the coder to say 'Hey, I done that 5 years ago!' in a court of law.
The law is an ass.
the rewards of 'enforcing' a patent against the linux kernel would have to outweigh the risks of being a permanent pariah.
given the fact that so many patents are revoked upon challenge, the fact that many patents are trivially circumvented via minor changes, and the fact that attacking one company over a 'patent infringement' in kernel code is in effect attacking millions of end users worldwide, the risk is extremely high and the rewards extremely low.
to me it seems rather unlikely any company would attempt this, unless they have nothing to lose (eg SCO).
Though many developers prefer to ignore patents, the current laws (at least in the U.S.) provide minimal legal defense for unwitting infringements. Worse yet, though a project may have pedigreed and documented prior art that could easily convince a court to overturn a patent, the cost of such an action is out of reach for most developers -- and many companies.
Microsoft knows this. It is why they are filing 10 patents a day (reported on Slashdot before - you look it up). They have, rather correctly in my opinion, identified a profound weakness in the system and are hell-bent to use it to crush the opposition.
They don't care whether the new patents they file are legal or ethical, all they care about is a premise to drag competitors into court and bleed them so dry that they are no longer a threat. Most of the patents they are filing may eventually be struck down in court either because they are trivial or because of prior art; it doesn't matter. They know it doesn't matter! In the end, all that matters is that they become the only company allowed to write any new software.
The more patent heavy corporations that have vested interest in FOSS, the better. This way, if a FOSS unfriendly company decides to launch a patent attack that would be damaging to the bottom line of FOSS friendly companies (IBM, HP, Novell) then it is all the more likely that the attacker will be found in violation of somebody else's patents. We have a MAD (Mutually Assured Destruction) scenario, and the attacker will be forced to back down. Aside from a FOSS patent fund, the best defence is to have as many patent heavy corporate friends with a vested interest in the success of FOSS as possible.
My rights don't need management.
I wouldn't be surprised if someone actually challenged the triple damages law on the basis that it makes it undesireable for inventors to look at patents, and therefore that the system violates the patent office's constitutional mandate. Of course, it would probably not be argued in front of the present Supreme Court, since they didn't seem to go for a similar argument in Eldred v. Ashcroft.
Unfortunately, I think it is more likely that this is a sign that companies like Microsoft don't want to attack the competition with patents until they have succeeded in getting US-style patent law in force around the world.
At the moment, it is very difficult to convince politicians how harmful software patents can be because most of the damage is theoretical. If Microsoft were to start suffocating Linux with patent threats prematurely, it would be much harder for them to get software patents introduced in Europe and Asia, thus reducing the effectiveness of their eventual attack.
flossie
Write now. Defend liberty
The other reason for not looking is that he wouldn't learn anything anyway. Most software patents [except for IBMs] are so vague that viewing the patent would only cause you troble...because most don't have ACTUAL implementaion...just "works-like-this". What ever implementations they DO have are locked up n copyright where nobody could ever see. That leaves many options for different intrepetations...look how many mousetraps are patented [versus 1 mouse catching device] Also, patents are invalid if the idea was published ANYWHERE prior to being patented.
That last one is where MAD comes in. I'd bet a great many things were in Linux and OSS LONG before they were patented...too many to count. Remember, OSS is published INSTANTLY! Type your idea up and post a working model on sourceforge and it can't legally be patented...ever! Any upstart company trying to sic the patent lawyers on Linus would end up with all of OSS brought into court to start invalidating patents...and OSS goes Way back before software patents were even Legal! No company in their ritht mind [SCO excluded!] would open that can of worms... After the first 100 or so invalid software patents, the Judges would declare them all void and tell the PTO to stop creating junk! That would ruin the whole little game.
When the FSF was having one of its funny turns and was proposing changes to the GPL that Linus was unhappy with, he stripped the "or at your option any later version" phrase from the licence
Whoah... I never knew that. I remember noting that clause at one point and thinking it seemed pretty risky. I also remember thinking that, if I'd been working on something I intended GPLing at the time, I'd probably want to omit it (or replace it with "or at *my* option any later version"; but that creates problems with the chain of responsibility, since which version applies to other people's GPLed changes?).
It appears that great minds think alike. Or, more likely, it didn't take a genius to figure out the problem with that clause; essentially "do I trust the FSF that much?".
BTW, you said pretty much what I said; the only way to license the kernel on a non-GPL basis is to get *every* contributor to agree, which won't happen.
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