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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?
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!
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
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...
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
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.
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.
so AFAIK software patents have the possibility of stopping the business end of linux, but can't fundamentally be a threat to its existence?
The fact that Linux users continue to use Linux, which is obviously an illegal rip off of proprietary systems, is analogous to those 12 year olds who continue to trade mp3s even after we explicitly told them that doing so was a felony. We will continue to implement hardware based DRM, we will deny a license for anything but the MS boot block, and we will continue to increase funding for the anti-piracy arm of the FBI so that we can raise multinational efforts to hunt down and prosecute, to the fullest extent of the law, anyone who continues to write this so-called "open source" software. We will use any and all available means, including invocation of the PATRIOT Act, to ensure that these hardened criminals do the maximum possible time behind bars as an example to our youth. We are continuing to lobby Congress for "three strikes and you're out" laws which make repeated "open source" violations a mandatory felony. The distribution of such "open source" code is also considered a felony. Distributing 1 kb of hardened binary code, based on open source, has a mandatory minimum of 5 years in prison and distributing more than 30 g of "open source" source code carries a mandatory minimum of 10 years in prison with up to a $50,000 fine.
With your help, and the help of other concerned citizens like yourself, we will eradicate "open source" houses from our neighborhoods. We will hunt down "open source" dealers. We will prevent our children from using "open source" code. We have already implemented measures to make the distribution of "open source" code with 500 meters of a school an automatic felony, no matter what amount or who the distribution is to.
'Nuff said...
+++ATHZ 99:5:80
>I would still like to know if anyone's audited the source code for any of the proprietary OS's for patent violations.
If they could be publicly audited for patent violations they'd be open-source, yes?
Steven
Patents are given out willy-nilly as we know from 'M$ 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.
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
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).
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 see Mr Ballmer's joined us again this evening...
Gentoo Linux - another day, another USE flag.
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.
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.
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).
...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.