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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.
Ravicher discovered that open-source-friendly companies (including IBM and HP) hold about 100 of those patents. Again, the likelihood that such a company would bring suit against someone using or distributing Linux is small, especially since those companies often distribute Linux themselves. (Legally, a company probably could, but it goes against the spirit of open source.)
The assertion "legally, a company probably could" in the above statement is false. Even though it's primarily a copyright license, the GPL contains an implied patent license.
Under construction: swpat politics overview article
"The 283 patents that the kernel could infringe have all gone unchallenged so far."
In other words- Sco doesn't know about them yet.
Visit Tim's Journal, yes?
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?
assuming software patents are enforced it seems "reasonable" (c.f. DMCA "effective security") that you can stop a company selling a product violating a patent. but can you possibly stop individuals writing their own code?
so AFAIK software patents have the possibility of stopping the business end of linux, but can't fundamentally be a threat to its existence?
If the point is negledgable they could get a compotent opinion form a patent lawyer that says they think the patent is bogus. Then they are an unknowing offender and only have to pay royalties. There are no royalties with OSS. Problem solved. But then again, they can't even find a target. Linux isn't one face, its many, unassociated, different corporations and organizations. Sue this!
I think it's a great idea to keep a jump on those who would seek to find fault with our beloved kernel. Obviously it's harder to stay safe from the vultures if you're out in the open, but at the same time - wouldn't it be nice to think "it's open: so it's definately infringment-free!"
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You mean the mean, pissed off, angry horde of IBM, lawyers that the companies would likely offer to Linus in order to save their own business model?
IBM lawyers vs. MS lawyers
THUNDERDOME!
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
Er, because I don't have enough to keep me awake at night as it is beyond the erroding IT job market in the US, the goofball in office, and natural disasters?
"Learning is not compulsory... neither is survival."
--Dr.W.Edwards Deming
First you would have to have the source code. I suppose it could be de-compiled? I don't know how that works. Are there laws against that? We are talking about Windows, here, right?
"Who are in control, they are not in control of anything - they don't even control themselves!" - Glen Beck
What makes you think that the IBM lawyers would be angry?
I think they'd be more like borgs. Resistance is futile.
The owls are not what they seem
Linux does not require copyright assignment as a condition for code inclusion.
*If* Linus had the copyright assigned to him, and he turned into Evil Linus, he could theoretically release the *whole* Linux kernel under a non-GPL agreement (a la MySQL). Of course, this assumes that the code was GPLed before Linus got it, but that the copyright was transferred to him with no restrictions attached.
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).
The flipside to this is that frivolous, non-innovative patents can be attacked without an infringment case - out of the blue - as restraint of trade, provided you have the cash to do so. If someone were to patent something obvious, let's say ordering a list of files by date, anyone can file a restraint of trade suit agianst the patent holder.
Linux's new backer, Big Blue, does have the lawyer army required to attack frivolous patents. The patent war may mean the true end of non-business-backed Linux. It also may mean the doom of companies that are senselessly patenting other people's inventions, and future security for Linux.
>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
I highly doubt the US government would care. Do you have any proof of Linux's involvement? Go ahead and file. You don't need the money the filing fee costs.
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.
"Linux" is neither a natural person nor a corporate entity, and can therefore not be a party in a lawsuit. You need a defendant to sue. That defendant could be Linus Torvalds, any contributor of code, a commercial vendor distributing Linux software, or just any John Doe merely suspected of having seen a penguin on television without paying for cable service. Point is, each defendant will have his/her own defense depending on the specific charges, and any verdict will therefore be fairly limited in scope.
You simply can't sue an abstract object like a software distribution (or a physical object for that matter) with a catchy name and expect a "guilty" verdict to spell disaster for anybody somehow involved with that object. If any court finds a problem anywhere in Linux, I'm sure the community will work to resolve the issue as soon as possible. So far, Linux has withstood more thorough scrutiny than most commercial software will ever see.
I was going to ask the same thing. Do you really believe the lawyers take this stuff personally? Do you think IBM's lawyers know what Linux is and actually care about saving it? lol. That's so naive. They get paid either way.
Support the First Amendment. Read at -1
I mean, if people who hold those patents REALLY want to be anal, I guess the linux dev guys could just develop those segments in asm.
This sig no verb.
...already proven that big corporate interests will sue scads of individual small fry or semi small fry users. I don't think this would be any different if it came to umpteen billions of dollars in alleged "infringements", and as far as "laws" go, patent infringement is a scosh worse than copyright infringement.
Not saying it will happen, just saying it might. A few years ago, you hardly got anyone to even consider the possibility of individual file P2P sharers getting sued, it went against "common knowledge" and whatnot from what I remember reading by all the internet experts.
the lawers probably don't know or care. fortunatly they don't make company policy or direct the company in major decisions concerning actions. I'm sure they will give advice but as i see it now, IBM's officers will continure to lead the company in the direction it determins neccesary and tell the lawers what to do.
The amount of research dollars saved against enforcing pattens should continue to outweight the extra slack IBM would have to pick up. It would also ruin or place several of thier sugested (secrete) goals behind like outdoing microsoft or simular activities. The angry hoards of IBM lawers might be a reality if IBM decides to tell them to do something. To me, it would only make sence that they take a position leaning that way. IBM has too much invested (including the fued with SCO) to sit back and not take notice. It wouldn't surprise me if IBM (or one of the other companies) used thier patten/copyright war-chest to trade off licensing/usage rites for everyone. I may be a little optamistic on that.
--spellchecking require too much effort
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).
If, hypothetically speaking, software XYZ violates a patent, can the users of the program be held liable, or just the program's developers or vendors?
I am pretty sure that copyrights only apply to copying, not use, but does anyone clearly know what the case is with respect to patents?
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.
I have the utmost confidence in the abilities of Linux programmers to overcome any patent threat. Unless of course, someone patents the keyboard, but even then, someone would sing the source code into the computer :-)
I see Mr Ballmer's joined us again this evening...
Gentoo Linux - another day, another USE flag.
As far a I know, MySQL is also offered with GPL licensing.
The MySQL database server is available under the MySQL AB "dual licensing" model. Under this model, users may choose to use MySQL products under the free software/open source GNU General Public License (commonly known as the "GPL") or under a commercial license.
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The Linux kernel can mount devices formatted under a whole heap of filesystems including System V, UNIXWare and other UNIX-type partitions. Presumably, since SCO holds the UNIX name, SCO also holds the patents to some of these filesystems.
So why didn't SCO carry out legal action based on patent infringement within the Linux kernel for building in that filesystem support?
Isn't this exactly the same type of attack we would expect from Microsoft for FAT, NTFS & Joliet support in the kernel?
Couldn't this be a sign that attacking Linux on patents might therefore simply not be worth it based on the money & time that would be involved?
Any comments?
Gentoo Linux - another day, another USE flag.
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.
(sigh) Once again,
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
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.
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).
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.
Ok, I misread your original post. But you do have an excellent point here.
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Because he is probably right. The reason we haven't seen patent action by Microsoft _yet_ is because they aren't ready to strike a killing blow. But they will be, soon enough...
The Chief Penguin was well aware of the risk (and temptation). He conciousley did not request copyright assignment, so the Linux Kernel is a derivative work of by now hundreds and possibly thousands of contributors. There is no overall copyright holder for the Linux Kernel.
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 on his contribution to the Linux kernel, and requested other contributors did the same. In general this request seems to have been followed.
In practical terms the Linux Kernel's copyright is tangled beyond any unscrambling. Licencing it other than via the GPL is untenable.
In many ways the Chief Penguin is very wise....
best... troll... ever!
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.
"Slashdot - News and Chat Sites Deviant". (Click "homepage" link above for details).
Umm, don't you mean filing 10 patent applications a day?
I would hope the US PTO isn't so hard up as to automatically grant every application filed by M$.
...for the patent issue: Open Source's usual strength is its weakness here. Since anyone can look at the source, anyone -- including hostile IP companies -- can fairly easily find infringing code. With a proprietary OS, the patent-holder first has to reverse-engineer the code to find the infringement. Which isn't so easy.
As for the claim above that no one has sued an end user: nonsense, of course. SCO has, for one. And one company was even successfully sued for a program which did not embody or use a patented process or device, but simply wrote one bit of data that, when inserted into another device, would cause it to execute the patented process in a manner violating the license granted to the manufacturer of the second device.
If you're paid to do something, you might as well enjoy it.
... IBM could write a formal legal license for open source software to use patented methods in perpetuity, mitigating the risk that IBM (or anyone who asserted a right to that specific patent) would bring suit against users, developers, and distributors.
This seems to be the best outcome, but only time will tell if open-source-friendly companies will lay down legal weapons in this way.
It would appear to me that the fewer the number of players there are in the "essential and unavoidable patents" pool, the greater the risk that a company or group of companies could unite and "take over" linux development, at least to the point of having veto power over projects, distributors, etc without there being other powerful players involved to interfere via their own patent portfolios
If only "Microsoft and friends" (for example) could bring the show crashing down in the patent arena, Linux would be a valuable prize. If IBM remains involved, isn't "and friends" and can bring the show crashing down too, Linux would remain a threat to be feared and not a prize to be taken.
-1 Uncomfortable Truth
Let's say that I know I will never be contributing to the Linux kernel, but I would like to make my own evaluation of this list of potentially infringing patents.
Does OSRM provide the list of 283 patents to those that want to see it?
Pat
"Triple damages" were probably not meant for "software patents".
The legislators that created patent laws were probably thinking about machines composed of a relatively small number of components, and wanted to make sure no one can use a patented invention as a major components in a new creation. It was probably meant against intentional inclusion of a component that is patented, and they probably thought that a person working in a certain field would not be able to claim she "wasn't aware" of a component being patented because it would usually be common knowledge to all experts in the same field that it is a major new innovation.
What they certainly coiuld not forsee is creations involving thousands and sometimes perhaps millions of tiny components, that each may be patented, and that know one expert can know even about a fraction of them.
In the "industrial revolution" era the number of patents, the number of inventions, and the number of components in each invention made it improbable that an inventor would accidentally infringe. In software the number of components (instructions/modules) and the number of patents makes "accidental infrigement" much more probable, perhaps even impossible to avoid.
Disclaimer: I am not a lawyer and this is not legal advice.
That is a completely unneccessary addition. Remember, that a license is simply a permission from you to other people for them to use your property. It is a "guarantee": "Use/distribute under these conditions and I won't sue you for copyright violation - you have this written permission to show to court if I do". You always have a right to offer your own property under additional licenses, after all, it is yours.
If you want to change to another version of GPL, then simply release all new versions of the software under that version. Or change the license of the current version to the new license - the people who already got the software under the older license can continue to use/distribute it under it, or even create a new branch, but nothing stops you from doing this.
A good example is the XFree86, which changed the license - and the consequences of that change are also something to keep in mind.
Is the GPL license itself GPL licensed ? Because if it is, then anyone could alter it, couldn't they ?
Forget magic. Any technology distinguishable from divine power is insufficiently advanced.
You sue the major distros, sourceforge, freshmeat, and distrowatch.
Sue them for facilitating patent infringement. Or whatever else you can come up with. It's a civil suit; the complaint doesn't have to be plausible or even get to court to be effective.
Once you've strangled the kernel and basic OS to near death, you start attacking the OSS programs that serves the function of whatever app you're trying to market.
These operations are typically run on donations or a shoestring budget. Usually an individual developer or small team of developers and users contribute the resources required to make the software available. That sort of target is not too hard to beat into submission with a big sack of money.
And Goliath has a very, very big sack of money.
David needs to find a sling and stone.
Quickly.
"Reality is that which, when you stop believing in it, it doesn't go away." - Philip K. Dick
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.
In fact, MySQL AB already comes to an agreement with all contributers: Before MySQL AB accepts any non-trivial patch, they ask you to transfer copyright[1], else they are going to implement the change themselves, if they consider it important enough. That's nothing unusual, the FSF does a similar thing.[2] So there isn't really a branch with a GPL'ed version of MySQL.
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.
[1] More precisly, they ask you to share the copyright (so that they may offer it under their commercial license). I don't know the exact wording anymore, but I have it lying around in some old mail from when they asked me.
One can assume that they came to different terms with some huge contributers, such as the author of the InnoDB table type.
[2] Albeit for a different reason: The FSF says it makes legal proceedings and the enforcement of the GPL easier, if there is only one copyright holder.
Keep an eye on which arguments are silently dropped in replies. Not always, but often times it's very telling.