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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.
"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?
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'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
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.
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
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.
Bruce
Bruce Perens.
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.
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.
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
...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.