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Software Patents Could Stop EU Linux Development
sebFlyte writes "An expert in computer and Internet law has advised that if the CIID is passed in europe (which looks likely but is not certain) then the threat of patent litigation could bring European Linux development to a grinding halt." From the article: "There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged. There is more danger that those potential violations will be litigated..."
"There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged."
Do you work for SCO?
It's pretty much like the speed limit, one can argue all day that doing 70mph is as safe as 60mph, but if the law is passed, and the limit is set at 60mph, everybody just have to slow down even your "common sense" says otherwise.
Rock that crushes, Paper & Scissors that don't matter.
..but don't they lose the right to sue after it has infringed openly for some time? Linux is as open as it gets. And it's been here a while too. Hell, it might even count as previous art against some of the more frivolous (ie most) software patents.
Given the US has stupid patents already and the Linux development still continues there... I am not convinced how expert this "expert" is.
-ben
It is impossible to stop the development of software against someones will. It may have to get developed under certain restrictions, but it is impossible to stop because of the inevitable communication through the internet. This is how software is so easily outsourced and it is the same reason development for linux cannot be stifled through litigation, but rather only through disinterest. my take
Math
Why does everything has to be patented?? Does anyone have an answer?
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Why did they bother writing it? There are neither examples, illustrations, nor case studies that show WHY Euro Linux or other open source projects will be severely hampered. I'm not disagreeing with him, but his statements have all the informative value of Microsoft FUD.
Trademarks work that way. Patents can be used to sue people no matter how long they may have violated it with or without the knowledge of patent holder. and IANAL
The EPO has already illegally granted over 30,000 software patents in Europe. Because these patents are illegal they cannot be enforced in court. But this means that the european software industry doesn't care about these illegal patents.
If software patents are legalized, these illegal patents suddenly can be enforced in court.
It is likely that the european software industry will come to a standstill for years after software patents have been legalized, as they have to spend their resources fighting in court instead of doing research and innovation.
I will then own the rights to ever have an information page on any patent stored electronically. This is called legislating yourself back to the stone age but is theoretically possible in the age of free-for-all software patents.
Acting stupid isn't much fun when there's someone around who knows better
"There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged. There is more danger that those potential violations will be litigated..."
.....
There is also "no doubt" that Microsoft Windows and every other operating system has patent violations.
Hmmm, Sue all Windowws users
I am the unwilling control for my Origin.
You know, THEM! Those folks. The ones that keep stealing your soda, paper clips and hiding your scissors. The ones that take your postit notes and hide them under your keyboard. THEM!!! The ones that email you about prescription drugs and penis enlargers. THEM!!!! The ones that dress your cat up in fancy lingerie when your off on business trips, drink your beer and hide the remote! THEM!!!!
Time for my medication already?
IANAL, but I've seen actors play them on TV
There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged.
This looks to me like the FUD we have been hearing for a while now. This kind of repetitive rhetoric (argumentum ad nauseum) serves one purpose: to instill in the minds of decision makes in the IT industry (those who hold the strings of the pruse, or those who recommend purchases to them) that they are at risk if they chose Linux.
If there are violations let us see them! Show us!
The worse that can happen is those portions will be recoded to be patent free in days or weeks.
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According to an IP lawyer I once had beer with, and since confirmed numerous times in the press, most large software companies have violated each others' patents - numerous times. But since everyone has "injured" everyone, most no one sues - since they will simply get counter-sued on a different patent.
That said, it seems obvious that the MS kernel, like probably all other kernels, contains IP violations. The difference is that only the FOSS kernels are open to public scrutiny.
So commerical companies can keep their IP violations largely secret, while FOSS ones get vetted publicly. Anyone wanna bet whether a closed kernel or open kernel has more IP violations? Does anyone believe that the MS kernel is completely free of IP violations? Anyone wanna buy a bridge?
- The Kessel run is for nerf herders. I can circumnavigate the entire Central Finite Curve in a lot less than 12 parse
that this couldn't read "Software Patents Could Stop EU Mircosoft Development"
then the threat of patent litigation could bring European Linux development to a grinding halt
Threats of patents hasn't seemed to slow US Linux development, so why would it have any affect on EU Linux development?
Things you think are in the Constitution, but are not.
The problem here is (or at least this is the belief held by many) that it's nearly impossible to write software without unknowingly violating a patent. This leads to the inevitable conclusion that Linux, Windows and every other large software package probably violates various patents.
At this time, many lawyers have advised their clients to postpone litigation at this point pending the CIID passing in Europe.
They understand that sueing open source projects at this point would:
* Scare away the Europeans from adopting software patents and turn them into an open source safe-haven by creating a good public case against software patents.
* Have no financial benefit whatsoever.
If Linux/Open Source projects/foundations haven't been sued yet, it's because it is currently being stalked by a hungry pride of lions who want to gaurantee they capture their prey.
Antelopes are skittish for a reason.
I've been Googling for acknowledgement of Linux kernel patent violations. Other than statements by SCO, I haven't found any.
Does anyone know what Jeremy Mark Malcolm was talking about when he wrote: "There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged."?
He is described as "an information technology lawyer specialising in Internet-related law...". Could this just be twisty English, saying that: Some open source software is acknowledged as having patent violations and that The linux kernel is an example of open source ?
The big players are protecting themsleves against people playing them for patents that they make use of. The lawyers are coming in and seeking to provide revenue for greedy people, and the smaller players are hoping to not get noticed.
I think that a compromise should be sought; the litigation-crazy equivalents of the ambulance chasers need to be eliminated from this game because they do not add value to the computer industry when they sue. The interests of the small players need to be defended against this; the larger players are large because they have defended themselves and the need to defend the money-making side of research in the computer industry will remain.
I suggest a middle ground for patents that reflects the speed of progress in information technology: a three year patent without protection while it is being assessed and which can only be defended by its owners if a product making use of that development is on sale. This supports the people who want to innovate to sell products without being too restrictive on the people who can't afford to protect their developments with extensive litigation.
A more wacky alternative: to include in patent specification that an example of the computer code required to perform the patented task be made available under a free-as-in-both license after a protected period of three or five years.
Why was this story, with zero facts and only the opionions of some lawyer posted. We have Groklaw to tell us the status of the EU software patent wars, and that source will also more realistically what it all means without the FUD.
To reduce crime, make fewer things against the law.
It's odd how every time a 'linux is on the edge of total destruction' article appears, it tends to come from a source that shuns it. I went to the downloads section and they have windows/mac/mobile sections. Could it be that ZDNet is about as interested in linux as microsoft is in making a better product for the sake of making a better product regardless of their development cost? My long time instinct is to say that ZDNet is so tightly focused on microsoft and mac they're pretty much against anything not 'mainstream'. Also, if there is 'no question' as to linux patent violations, why did the judge in the SCO v.s. IBM case stop short of directly accusing SCO of a dog and pony show and dismissing SCOs charges? Am I missing something, or is this another helping of FUD meant to feed the uninformed?
If making millions of pounds a year profit is classed as failure, I would love to see your idea of success.
Backup not found: (A)bort (R)etry (P)anic
Also, if you bothered to RTFA, you'll see that this idiot (Jeremy Mark Malcolm) who's being quoted offers ZERO proof that there is, as he claims:
In other words, he pulled his factoids out of someone's ass (probably McBride's or Gates - oops "Sir" Gates to us peons).If you do a google for this guy, you'll see that he's no "legal expert", he's just some part-time (very part-time) lawyer trying to drum up a name for himself down under. His day job (for the last 7 years) is "Manager of Terminus Network Services" here.
The nazguls would eat him before breakfast w/o working up a sweat [tt].If you really want to laugh, here's a google cache of his home page.
I mean, come on, you want expert advice from someone who describes themselves like this:bwaahahahahaha - gee, too bad that the VAST MAJORITY of geniuses aren't stupid enough or insecure enough to pay for the "privilege" of belonging to Mensa.Anyone stupid enough to get suckered into paying some other group to say "Hey, they think I'm smart" is White House Press Corps "lob-a-softball-question-for-George" material.
Yeah, tens of thousands of software engineers will probably lose their jobs.
But who cares about sleazy people like them? They only research and innovate instead of doing something productive.
The good thing is that we will get a lot of new jobs because of this. Thousands of fine patent lawyers will get new jobs.
</SARCASM>
There is a reason that 47% of the swpat-positive replies to the hearing that the European Commission held were from patent lawyers and patent offices.
Patents have always existed. In the old old days it was just called "the King". Didn't matter what it was - if the king wanted it, then you were in violation of the patent.
In todays world like at that time, there is a need to treat intangibles as real estate. It is of course - all about money. Or is it? Today it seems to be increasingly about control specifically about control of further development. Obviously next to having a pile of it, the best thing would be if you can keep anybody else from also getting a pile of it.
I think there is a fine line between being able to capitalize on your investments and to assert control of future developments. And we have long ago crossed this line.
I think that hefty taxes should be asserted by the state to maintain copyrights and patents. A yearly 2% of estimated value would be sufficient. Too many companies are just sitting back not doing anything except capitalizing on litigation. It doesn't matter if you are right or wrong. Littigation is very effective business weapon which can drain any competitor given enough money. And the only way this machine can be effective is when enough laws and patents are available. It is my opinion that these laws are benefitting very few by selling out on basic human rights. In particular the right to earn a living.
How about we insist on forced open source as a price for patents?
I mean:
* You can't determine prior art if all the software is closed source.
* You can't defend against patents if your prevented from showing the prior art.
Therefore in exchange for patents, all software must be open source. Not just the patented bits (because unpatented bits may be prior art for future patents) - all of it.
That would fit with the Vacuum cleaner/Steam engine model, since as soon a Dyson puts out a new Vacuum cleaner its obvious from looking at it how it works. So it would put software in the same position.
1) All useful things that can be done with a computer are patented, some more than once.
2) The Linux kernel does useful things with a computer
3) The Linux kernel infringes patents. QED.
Now, those patents may very well be BS, but Linux still infringes them and they are valid patents until someone challenges them in court, which is expensive.
It doesn't MATTER if 95% of the software patents issued in the US have prior art or are just blindingly obvious. Nobody has enough money to challenge all of them. Therefore they are effectively valid.
In California, at least, if a city or some local government post a speed limit sign that says 10 MPH on an interstate freeway (for example), you don't have to follow it because the speed sign is not "reasonable" from an engineer/public safety perspective. All speed limit signs MUST be backed by engineering studies that says the proper speed limits should be set at x MPH for this stretch of road. If you get a ticket for speeding, and in court you demand the prosecutor providing engineering studies proof to back-up the vailidity of the speed limit, and they cannot, your case is then dismissed and you are free.
Therefore, even if the law is passed, it doesn't mean you should follow it blindly.
On another tangent, if the traffic is going 80 MPH, and you go 70 MPH on a 60 MPH highway it was possible to get a ticket for going too fast and too slow at the same time. Though usually the court will throw out one of the two.
Applying that to this situation, you'd need to have a few "obvious" software patents that they would simply have to attack. They would have no choice. You don't care about sacrificing those patents - in fact, the only way to really win IS to lose them - what you care about is setting a precedent that blunts or even disembowels their own patents.
One thing American culture isn't too good on is that sometimes the best way to win is to lose. You just have to lose the right way. Precisely because that is a weakness in American culture, it is very unlikely American businesses would know how to deal with it. They'd be far more likely to win first and understand the consequences later.
Those more into Doctor Who, in particular the story The Five Doctors, will recognize this strategy as the one Rassilon uses. To Win Is To Lose, and He Who Loses Shall Win.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)