Slashdot Mirror
Patents Role in US/AU Gov't Use of Open Source?
An anonymous reader asks: "How do governments (esp. US and Australia) deal with possibility of a patent lawsuit from some company against a specific OSS product, which might be deployed by a given government department? Is there any danger for various (government or not for that matter) agencies being told 'not to use this or that software from now on' because some commercial company might be winning the patent battles in court against this particular piece of software?
I can see how a small business may take such a risk, but government agencies in the US and Australia could be put off by possibility, since the costs associated with migrating to open source and then back would be rather extreme (note that we are not talking about Europe which has different take on Software Patents and consequently Munich case is not really a strong example in the US/AU context). Personally I do not like software patents and think that they only inhibit software development processes, but how would Slashdot community reason for government-wide adoption of OSS in view of possible trouble with patents?"
Anonymous Coward writes "Once again I woke up today and found that I was hungry. This happens nearly every day. I know there must be something I can do about it, but I have been unable to find anything at Source Forge to help me. So my question to the gigantic Slashdot brain trust is this: What do you do when you are hungry and more importantly, is it open source? If it is not OSS, are there any copyright or patent issues that need to be dealt with? Also, is Google or Apple involved in any way? One more question: What degree should I get?"
...the one with more lawyers will win.
And the Government of the United States of America has a HELL of a lot more lawyers than any corporation.
The sooner they recognize that the same liability exists with closed source the sooner they will realize that the software patent system is at fault.
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Seriously, watch the armchair lawyers come out in droves with the "IANAL, but" posts.
Slashdot should leave the legal questions to real lawyers. Let this guy go talk to somebody who actually knows something, instead of some know-it-all schmuck on the Internet.
OSS has no greater chance of being the target of a patent, or copyright, lawsuit than closed source software. In fact, any organisation can view the source and make their own risk assessment; something you can't do with closed source software.
They walk into a hanger, and see that Nasa and the military has assembled a drill that looks amazingly like something he had come up with..
Bruce Willis: "What, did you raid the patent office and steal my designs?"
The Man: "Yep"
What are we going to do tonight Brain?
against either government?
If you're going to sue the govt, you'd better have a lot of money. If you're a competitor of open source bringing the suit, how does winning improve your chances of future business with the govt?
"I'd rather be a lightning rod than a seismometer." -Ken Kesey
Software patents are a grave threat regardless of whether the software is Free or not.
The only real difference is that a large company who is the target of a patent suit can usually buy enough lawyers to prevent a patent from actually taking effect. But there's no guarantee of that.
- David A. Wheeler (see my Secure Programming HOWTO)
The U.S. Government? Using Open Source Software? Umm...maybe you don't follow U.S. corpolitics?
Going back to school for entry-level jobs?
military action of course!
This guy is way out there
AFAIK you can't sue the US government without its permission. At least not in US federal court. They do give their permission often however. But if they really wanted to they could violate GPLs and EULAs left and right and just not let anyone sue them for it.
I don't think it's anything to worry about though. The real worry is the government wasting taxpayer money on proprietary software and also using closed formats in an "open" government.
The GeekNights podcast is going strong. Listen!
The answer to this question is so obvious. From a legal definition: A doctrine precluding the institution of a suit against the sovereign [government] without its consent.
The real "Libtards" are the Libertarians!
Parent means to write "eminent domain," which is the legal theory under which the government can condemn property and forcibly purchase it "for the common good."
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So far, there is no such thing as eminent domain for intellectual property. In fact, the Supreme Court ruled that a state may not break patents in Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank (527 U.S. 627, 119 S.Ct. 2199)
That's not to say that that policy could change, however. This article explains: http://www.prospect.org/web/page.ww?section=root&
Generally, it is a good idea to avoid picking fights with the people that control all the money, guns, courts, and jails, and are the also the only ones that are enforcing your "Intellectual Property Rights" in the first place. So when the judge tells you "Let's see, your asking me to rule in your favor on something that will cost the goverment billions... that would be the SAME government that is paying my salary?!?" you can pretty much predict what the outcome will be...
I've abandoned my search for truth; now I'm just looking for some useful delusions.
Not if the file format is what is patented
(GIF, JPEG)
Do you have any authority for this? According to the relevant clause in 28 U.S.C. 1498
...the owner's remedy shall be by action against the United States in the United States Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture. Reasonable and entire compensation shall include the owner's reasonable costs, including reasonable fees for expert witnesses and attorneys...
(a)
Usually in these kind of lawsuits ... the one with more lawyers will win.
But when when governments are involved, it's irrelevant.
If a patent liability becomes a nuisance, governments everywhere (including those of the US and Australia) simply claim sovereignty as a means of giving someone abroad the finger, or they claim national interest as a means of silencing internal claims. The latter especially is extremely common.
Governments and politicians may be the scum of the earth, but in this case, patent holders claiming rights over ideas are the worse scum.
So far, there is no such thing as eminent domain for intellectual property
Which is bizarre, since the state can deprive a person of his home under the doctrine, but not IP, which can be duplicated.
I guess if you really think about it, it kind of makes sense though. People use their homes to live in, and if the state needs the land for a highway, they're supposed to pay a fair market price. The thing about "intellectual property" is the primary thing you do with it is sell it or license it's use. So I guess in theory rights to the "property" should be for sale, so the government could just buy them in some form if it needs them.
Of course, this ignores the phenomenon of the "technology firm", which sells nothing and makes money by suing.
Finally, "Intellectual Property" is one of those "have you stopped beating your wife" frame-the-debate terms. If an idea can be owned, then the government should pay for its use. But there is another view that patents are just monopolies granted on the exploitation of ideas for the public good -- like the monopolies granted to the water company or electric company. In that case, the government could simply exempt public uses of an idea from the patent monopoly.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
OSS is less exposed to IP claims risks than is proprietary source. Apart from their relative openness, they're equally likely to include proscribed code. But OSS code can be searched by anyone (including suspicious IP owners), and has better code "pedigree" records, also searchable by anyone. Patents are an old form of open source: patented devices are published in enough detail to allow anyone to be sure they're not infringing, before they use a design. OSS under licenses like the GPL are a decentralized version of that publication, without the restrictions on further using the protected property (except so far as to retain that viral, open license).
So a better question is "how does an org protect itself from IP interference with IP upon which it depends?", and a good answer is "use OSS instead of proprietary".
--
make install -not war
Regardless of whether the Goverments can be sued or not, in an instance such as this, particularly here in Australia I think they would be using the "we could be sued" line as an excuse not to migrate. Firstly, with the M$ propaganda they probably believe switching to OSS will cost more in the long run and secondly because they want to keep up appearences that they have shot themselves in the foot as much as they have the rest of the country by accepting the US IP laws as part of the "FTA."
I do believe that the Australian Capital Territory Govt has introduced legislation that calls for any new projects to look at OSS alternitives first in all territory related matters. However, being a territory and not a state, the federal government has the power to veto this law at any time.
It is a sad state of affairs that so much of the tax payers money is being used to pay for software licences, when there are free open alternatives. Particularly when in numerous cases they are using off the shelf products that aren't quite what they need but are the closest thing on offer, resulting in hacks and work arounds that are costing more money in govenment employee's wages.
But hey, it's only the tax payer and most of them think that Windows is the best, most secure and most cost effective operating system anyway, so what's the problem?!
Lets say that, with people being people, there would be just as much copying of code in both worlds (OSS and closed). But then, remind yourself of the fact that OSS is open; everybody can see what you used and how it's structured (look at the CherryOS debacle)...so OSS has quite a big, legit and pretty much unsurmountable reason to not be copying code.
/. the wrong question...the question you should be asking is 'why did I post a story on /. comparing OSS and closed software, with a question partaining to something (copyright infringment) OSS has inherently no problem with?'
/cows FUD?
Then look at closed source software; you can't see the code! So I'd say that almost per definition closed software has a greater amount of legal liability than OSS; OSS shows and bares all, closed doesn't. People being people, the guys who can hide will hide.
So it looks to me like you're asking
Are you feeding us
-- Waht? Tehr's a preveiw buottn?
A Microsoft/SCO PR flack asks: "How can I use public forums to help prevent governmental organizations from diverting taxpayer dollars from our coffers? How do governments (esp. US and Australia) deal with legal blackmail that might prevent them from using a specific OSS product, which might be deployed by a given government department? Can I create the perception of danger within various (government or not for that matter) agencies so that they'll be told 'not to use this or that software from now on' because of some virtually non-existant threat of patent battles in court going against this particular piece of software? We've already locked in small business, so they don't count. But, government agencies in the US and Australia have enough clout and a different business rationale, so I need to convince them that they'll get seriously screwed over (note that we haven't rolled the EU on s/w patents, yet). I'm really not a paid flunky for Microsoft/SCO, really, so you show me your FOSS evangelist "play book" that I won't use to craft a workaround in my astroturfing projects?"
Luke, help me take this mask off
OSS has a wonderful resistance to lawsuits in redundancy - multiple items developed independently make it such that it is unlikely that ALL open-source solutions to an issue be susceptible to any given suit. Furthermore, the incomparable ingenuity and swiftness of the open-source community mean that any code found to be in violation has a relatively high probability of being quickly changed (one reason that SCO was so reluctant to identify the specific Linux source "in violation of" their copyright).
Also, should the government adopt OSS, it can always shrewdly deny software patents it believes might lead to legitimate suits against it.
Of course, as was pointed out by others above, it is doubtful that the government would adopt OSS in the forseeable future because... well... do any of us doubt that Micro$oft has the money to buy, among other things, our responsible civic representatives?