Perens Dismisses Torvald's Patent Pool

ficken writes "Open source activist Bruce Perens has dismissed as inadequate a new IP initiative backed by Linus Torvalds. The Open Source Development Labs' (OSDL) patent commons project is intended to provide patent protection to open source developers. Perens, speaking at LinuxWorld, compared the patent pool to "spitting in the wind" -because the patents it contained come from "the wrong people.""

Comments

"Lloyd's taking on open source IP risk"

[Quirk]

The Reg has a pertinent piece on the venerable insurance company Lloyd's being close offering..."independent insurance protection worldwide against potential IP litigation involving Linux and open source software".

Re:"Lloyd's taking on open source IP risk"

[Anonymous Coward]

You can use a broker to get a lloyd's 'name' to write an insurance contract on any risk you want - already. The 'names' do take on 'custom' risks, the drawback is that the risk is rather uncertain and the cost could be potentially high for both sides...making it a more standard offering should make the premiums reflect actual risk rather than risk which includes huge uncertainty of the risk:)

What the article is about

[Roland Walter Dutton]

Oh Ghod, here we go again. Since the submitter hasn't given a remotely useful summary of what Bruce Perens' actual problem with the patent pool is, I will explain it here for those of you who won't RTFA.

THE ARGUMENT ---

There are two main types of possible patent agression: 1) from patent trolls and 2) from big companies with lots of software as well as lots of software patents. Let's see how our new patent pool does against each of them.

Case 1:

PATENT TROLL: Your software violates my patent on the letter 'g'. Pay me $40,000,000 to go away.

LINUS: Your software violates several thousand patents in *our* patent arsenal.

PATENT TROLL: I don't own any software; all I have is this portfolio of groundbreaking, original patents. Pony up.

Now *nobody's* patent pool is useful in case 1 (unless it just happens to contain prior art on the troll's patent). Patent pools are generally for use in case 2.

Case 2:

MICROSOFT: Your software violates 42,000 of our finest patents. Go to jail.

LINUS: Your software violates several thousand patents in *our* patent arsenal.

MICROSOFT: Oh, that's too bad. Would those be the patents loaned to you by other major software companies? The same major software companies who have given us an unlimited, perpetual license to use all their software patents in exchange for a similar license from us? Yes? Gosh, now I'm scared.

So if the Linux patent pool is no use in case 1, and no use in case 2, it's no use at all, correct?

THE POINT ---

Now I don't really know how correct Bruce Perens' position is, although on the face of it it does seem highly reasonable. What I do know is that whether you think Bruce Perens suX0r, or whether he founds too many nonprofits, or whether or not he could defeat the fscking Green Lantern, is *completely* *irrelevant* to the actual question, which is really pretty damned important. So: can we talk about the *actual* *issue* now, and not whether we like Bruce Perens?

Re:What the article is about

[lma]

Case 1 is always a problem, and no one expects a patent pool to solve it. The argument here reads a bit like this to me: "Your solution to problem A doesn't solve problem B, therefore your solution is bad." Huh?

Case 2 is solvable by a patent pool. The argument made here that a patent pool is ineffective depends on the fallacy that patents in that pool have already been licensed to a potential aggressor through some other means. Again, I think that everyone recognizes that to be effective, the pool must contain original IP not already licesned to a potential aggressor. The discussion we should have is how to encourage and enable the growth of that part of the pool.

Larry

Re:What the article is about

[Bruce Perens]

Larry,

A pool operated by OSDL may simply be ineffective because OSDL's controlling members, the big ones who have board positions, for the most part already have cross-licenses with Microsoft.

There is also the fact that OSDL's controlling members are some of the world's largest software patent holders, and a real solution to the problem simply isn't in their interest. When we fight against the embedding of software patents in standards, we are generally fighting IBM. This has been true at W3C, OASIS, and elsewhere.

Thus, I doubt the effectiveness, and indeed I am afraid that I even doubt the sincerity of the patent pool.

Thanks

Bruce

Re:Some FUD spreading perhaps?

[Master of Transhuman]

I suggest you wander over to Groklaw and get a clue about "legal standing".

Yes, if you do not have a patent or any other basis for suing somebody, your case will be kicked out of court in a heartbeat.

Not only that, you may be sued by other parties or even held in contempt of court for bringing a "frivolous lawsuit".

The idiot suing the OSS people because it's devaluing his work is in this situation now - his case is being ignored because he has no legal standing.

Re:A few points

[prof_tc]

I agree that it's not what we want, but it is a stopgap. While the patent system is screwed up, its all we have to work with until we get people to see the truth.

Until they do, we have to defend ourselves with the weapons we have.

Re:Stop the infighting

[inode_buddha]

FWIW Groklaw had some commentary on this a few days ago.

http://www.groklaw.net/article.php?story=200508092 21240129

Re:News for Nerds...

[The Axe]

Actually, I believe it would be "Linus Torvalds's pen."

You put an apostrophe followed by an s to indicate ownership for singular nouns, even if the noun already ends with an s. With plural nouns, you omit the s after the apostrophe.

Singular example: The class's discussion lasted an hour.

Re:News for Nerds...

[soma_0806]

I consider this pretty pointless and anal in general, but if you're going to be critical, you must also be correct.

While it is true that the possessive in the title is incorrect, according to MLA formatting as well as Strunk's Elements of Style, which is pretty much the authority on such matters, your suggestion is acceptable, but more correct is to add an apostrophe s. ex. Torvalds's. It's actually rule number one in Strunk's Elementary Rules of Usage.

Aside from all that clap-trap, I notice gramatical errors in numerous "professional" publications that don't have the additional challenges of slashdot all the time. (For example, speed is kind of important here, so maybe things don't get checked over by three or seven different editors). I know it matters. Of course it matters, but you sound pretty snarky in your reply, so it may bode well to ask yourself just how much it should matter.

Also, I am an engineer, not an English major, so my reply may indeed be replete with errors. I love it just the way it is, just like slashdot.

Re:Some FUD spreading perhaps?

[Anonymous Coward]

I'm not sure I follow.

You can sue anyone over anything, you have the legal right. What a patent does is put you in a situation where you may win, if the opposing party infringes your patent and doesn't have the resources (or the logic just isn't on their side) to get the USPTO to terminate the patent. Typically defending yourself in a patent infringement suit generally costs, from the estimates I've seen, something in the $2M area.

For a small developer, if the day comes a patent infringement notice arrives in the mail, the developer really has few choices:

1. Raise $2million and investigate methods to overturn the patent and have it ruled invalid. That assumes, of course, that it's somehow easy to prove the patent is "trivial" (few, if any, approved patents in recent years have been overturned on the basis of someone proving they're trivial), or that there's prior art (which there may well not be, if the patent concerns a recent technology.)

2. Cave in. Remove the offending technology from the code. In some cases, this may cripple the code completely to the point that the project is no longer supportable. Sometimes there are no workarounds.

Software patents cover a wide variety of applications, and they're not merely used to prevent people from, for example, rendering a font a particular way without a license, but also to access data whose format is covered by patents. This is why, for example, there is no legally 100% free MP3 encoding system in the US. Systems like LAME live in legal limbo. FOSS MP3 players exist by the grace of Thompson & Franhoffer, and there is no FOSS MP3Pro player because that grace hasn't been granted by the licensors.

So in the end, I'm puzzled by your assertion that "Patent infringement isn't a serious problem for open source projects. It might be a problem for open source companies, but that's their problem." Open Source Companies at least are likely to have the wherewithall to fund patent infringement lawsuits. For typical FOSS projects, on the other hand, there's no comeback. It's quite possible for a well placed patent to cause an entire project to be shut down, the code possibly getting maintenance in Free countries, but existing in legal limbo in the US.

That's not a good situation.

I will not comment on what Perens has said because frankly the Slashdot writeup is dumb, I haven't a clue what the details of the project Perens is supposed to have criticised is, nor whether Perens comment was an unsolicited diatribe, a passing comment, or a response to a specific question. El Reg isn't what it used to be.

Re:Stop the infighting

[Bruce Perens]

I support Eben's efforts to change patent law. Daniel Ravicher has been successful at reversing a Microsoft patent, and we need to do a lot more of those. I don't support the pool at this time because I feel it can actually hurt the overall effort. Note that I am not alone in this, Florian of NoSoftwarePatents.org, an organization that has been incredibly effective in saving our butts in Europe, said the same thing.

When OSDL has an effective patent pool, they will show us how it can be effective. Until then, I believe that belief in the pool only diverts people from solving the problem.

Bruce

If you think I'm wrong

[Bruce Perens]

Folks,

My office phone number is 510-526-1165 and it rings in my home too. I leave it off the hook when my family is asleep, so you don't run the risk of bothering us. If you feel I'm doing the wrong thing, call me and discuss it. I may convince you otherwise.

Bruce

Re:Some FUD spreading perhaps?

[Anonymous Coward]

"Patent infringement isn't a serious problem for open source projects. It might be a problem for open source companies, but that's their problem.
-russ"

That's right. Speak with the voice of stupidity.

No patents harmed PostgreSQL (ARC)

No patents harmed rproxy (http://www.computerworld.com.au/index.php/id;8391 60262;fp;512;fpid;968099126) for web page speed up.

No patents harmed fontconfig (pcode character hinting)

No patents harmed iSCSI (dual CRCs for PDU rather than the same algorithm used for ATM).

No patents harmed GNOME (spring loaded folders).

Please pull you head in and stop making a nuisence of yourself. You obviously have no clue what you are talking about.

Re:Stop the infighting

[Bruce Perens]

if for example, the 500 patents IBM donated have in fact been transferred to the full ownership of the EFF?

What we had from IBM was a covenant not to sue, not any sort of transfer. It was not useful for defensive purposes. And Stu's remarks in Business Week led me to believe that the 3000 patents were all that sort of covenant. I asked him to clear this up in email. He did not put anthing concrete in writing and offered to talk with me on the phone. That probably won't happen until late this week.

I surmise that there is no strength to the pool at this time.

Thanks

Bruce

Re:Some FUD spreading perhaps?

[Anonymous Coward]

Look at what Keith Packard did with his font renderer

Give credit where it's due. Keith Packard had absolutely nothing to do with this. It's the FreeType guys which did all the good work.