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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.""
It's dissapointing to hear this event played up for the media's benefit. I read this article yesterday and while Perens' comments seem out of place, the open source community needs to work together instead of becoming splintered with bad press like this.
While we're at it, all criminals should be either executed or set free. Because everything is black and white, and there's never any middle ground. Yeah.. that makes a lot of sense. /sarcasm
What you're forgetting is that there are valid reasons to differentiate between things that should be patented and things that shouldn't. In fact the patent system already takes such things into account. You cannot for example patent a mathematical algorithm. This is a valid and logical thing to dissallow from the patent system, the big problem with software patents is that software is a mix of mathematical algorithms and creative innovation. It takes careful examination to tell which side of the fence a certain program or system falls on. Yet, the patent office doesn't seem to realize this, or doesn't have the skill to deal with it, and therefore tends to grant patents that are nothing more then simple mathematical algorithms with no innovation.
When customs officials are reviewing people for acceptance into America, they check to see if you're a criminal. If you are, you won't be allowed in. Just because some people are criminals, they don't ban everyone from coming into the country, they examine the person with skilled employees on a case by case basis and make a decision. This is what the patent office *should* be doing, but they are failing and in the meantime letting all kinds of criminals into the system.
If there is a patent war, this will assure the dominance of China, India, Brazil, and Eastern Europe in both open source and software innovation in general.
A cynical part of me almost wants to see the West shoot itself in the foot with patents, but then I remind myself, "Oh wait, I live in the West."
random underscore blankspace at ya know hoo dot comedy.
That doesn't mean that it's okay to forget how to assign possession to words. Please, editors and posters, realize that his name is Torvalds, and when he owns a pen, it's "Linus Torvalds' pen."
Word choice, grammar, and punctuation matter. If you're one of those people saying "I'm a nerd, I don't have to know how to write" then please, spare the rest of us, and don't submit stories to major "news" sites.
Editors who don't catch these things are simply pathetic, and it's inexcusable.
That is, unless we're talking about someone else named Torvald, in which case I move to strike my previous comments.
Perens seems to fail at laying out a solid plan or alternative to the open source patent portfolio Torvalds and others are trying to accrue. While criticism is good, without proposed solutions it is only negative.
With that said nobody claimed this open-source patent portfolio they are developing would be the be-all end-all solution to patent problems but it is a step in the right direction. Sometimes you need many lines of defense. Lobbying our political leaders costs more money than most FLOSS supporters have save a select few companies (like IBM who still love to horde patents).
This patent portfolio is needed in the meantime and not meant to be a comprehensive defensive line anyways. So why such negativity without a solid alternative?
1) The patent system is unjust, broken, and appearently intentionally so.
2) Software patents are a bad idea
3) Patents are expensive to get and expensive to assert...but not as expensive as having to defend against
4) Even if a patent you hold in your pool can't be used to counterattack, it still can't be used against you.
5) Things start small. The current roster of patents donated may have all of the faults that Perens cites, but that doesn't mean that the ones that follow will.
6) You got a better idea? Go to it. I'm not stopping you.
Perens is right that this isn't a cure all. It's not the defense we want. This doesn't mean it's totally worthless.
I think we've pushed this "anyone can grow up to be president" thing too far.
Don't build your life around hating the "wrong people" so much you reject their donations to a patent pool.
A careful reading of what Perens said will reveal what he meant by "wrong people". The people who would put such patents in a pool are already friendly to open source, and are thus least likely to start trouble for open source products.
I see his point. Putting patents in a pool like this is a noble gesture, and it's certainly useful that these patented techniques will be allowed in open source software, but it doesn't buy open source much in the way of legal protection.
Your summary seems extremely plausible. Having an arsenal of patent leverage could easily be useless leverage in the scenarios you describe.
I think that first and foremost is fulfilling the need in the software world for a patent liability analysis/consulting industry. The patent system is widely misunderstood by the average Joe working in software.
Slashdot, the Fox News of the Patent System, is proof positive of this observation.
While reform, via legislation or case law, is an ideal solution (using both definitions of "ideal") a more immediate and likely solution, in my opinion, is including patent liability in your software project. Market analysis, marketing, tax experts, and human resources are existing overhead in software development companies. I'm just making the observation that assessing your patent liability in a professional manner, by experts, with some form of insurance, seems to be the next logical step.
Of course, when the patent system is "adequately" reformed, that will be unnecessary. But which seems like the best solution for tomorrow or 2006? Continue blindly, hope you don't get sued, and wait for reform; or pay an expert to determine whether you're on thin ice regarding patent infringement?
A first step toward making this an industry-wide practice could be a service like Groklaw that helps to inform and educate those average Joes. I'm not sure that devoting resources to develop a Mutually Assured Destruction patent arsenal will possess any real expectation of success.
Bruce incorrectly assumes that the only patents in the pool will be from IBM, etc. He is mistaken. He assumes the lawyers who set this up are stupid. They decidedly are not.
People who are not in the legal field need to realize that they are not qualified to give "opinions that matter" on legal issues, and for sure not off the top of their head like Bruce did. He should issue a clarification statement, in my opinion, or go down in history as clueless or a headline-seeker. It's unseemly what he did. Besides, anyone who understands patent law and has the facts on this project will know he's wrong; but the damage he has done is done. Shame.
All a patent (or a library of them) buys you is pretext to go to court. I think the term is "standing".
After you get onto the battlefield, you still need to actually defeat your opponent. In civil court in the US, this is accomplished with money and popular appeal.
While it's possible for the free software movement to appeal to the public as David to [whoever]'s Goliath, technical people don't do a good job of selling ourselves. Maybe it's our natural distaste for sophistry and our intellectual arrogance. My point in this paragraph is to dismiss the court of public opinion. Even if David wins here, Goliath has to give a crap about their image in that particular instance. And Goliath will be back.
Which leads to the real issue. Money. David's got a couple dozen patents and a few grand (hell, give him a couple hundred grand). Goliath has hundreds of times the resources in both arenas. So David wins a battle or two. Goliath wins by sheer attrition.
The solution here is for David to bind his interests to the interests of a powerful party. Convince business and government that:
--The continued existance free (as in beer) software,
--drastic changes (back to reasonable limits) to the patent process,
--and the development and business models promoted by the GPL, LGPL, BSD-license, (pick your favorite)
benefit them in a direct, immediate, and measurable manner, and you have a battle you can win.
Co-opt the resources of your opponent. Better still, convince your opponent that you are his friend and he needs you in order to achieve his goals.
Folks, we (the OSS community, developers, testers, users) need to realize we're doing a terrible job of selling ourselves. Take a lesson from our favorite whipping-boy. Get governments, schools, businesses dependent on open source software. Dependent on the fact that it is free and open-source software, not just on a particular app. Hell, convince Microsoft that linux is not competition, but a resource they can benefit from only as long as it's free. Why not?
"Reality is that which, when you stop believing in it, it doesn't go away." - Philip K. Dick
It sounds like Perens is attacking this proposal for not doing something which it never claimed to do. If Microsoft or some other anti-OSS software company wants to use their patent portfolio against open source projects, there is absolutely nothing anyone can do about it except perhaps get the patent invalidated, if there is a case for doing so. What it sounds like this was intended to do, and seemingly does do, is present patented technologies that open source projects unambiguously CAN use without fear of retribution.
So what does Perens want? The only way to securely eliminate the threat of Microsoft, etc. using patents agressively against open source would be to eliminate patents altogether, at least on software and anything related to software. That might be a reasonable position that deserves consideration, but if that is what he is advocating he should say so openly so that it can be reasonably debated, rather than making insinuations like this.
"(Man) tries to live his own life as if he were telling a story. But you have to choose: live or tell." --Sartre
Exactly.
And Perens has no ideas of his own to bring to the table, so he should fuck off.
I personally doubt that just having a patent commons is going to be all that helpful once Microsoft starts suing OSS people (as they undoubtedly will once they see they have no choice left if they want to survive as a company), but it can't hurt to have one to back up the other efforts Eben Moglen outlined at LinuxWorld.
At the least, it could be used to help keep out the riff-raff - the lame smaller companies who jump on the "sue OSS" bandwagon. Eben specifically stated this project was intended to prevent SCO from happening again. And SCO certainly qualifies as a "lame smaller company."
Richard Steven Hack - This sig is TOO GODDAMN SHORT TO DO ANYTHING USEFUL WITH! MORONS!
I'm not interested in distinguishing whether Bill Gates or George Bush is "the Great Satan".
An asshole is an asshole, it's that simple.
There are fanatics in everything - including Windows and Linux and OSS and interior design and poodles.
So what?
There are also idiots who like to post pompous bullshit on
Perens was stating that the "wrong people" are people contributing patents to OSS who already support OSS. He would prefer Microsoft to do this. He knows Microsoft won't. His conclusion that the Patent Commons Project is worthless does not follow from his premise, but his premise is correct - and completely irrelevant to your post.
Don't build your life around trying to convince everybody to love everybody else. Ain't gonna happen.
Richard Steven Hack - This sig is TOO GODDAMN SHORT TO DO ANYTHING USEFUL WITH! MORONS!
The guy posts here on slashdot all the time; instead of infighting so much, why doesn't someone just ask him to clarify the details of an article written in a newspaper that's barely above being a tabloid?
Anyone that reads too deeply into "news" snippets like these which happen to always be adversarial and use creative verbs like "slams" and "rails against" needs to have his head examined. The Register is the UK tech equivalent of E! television.
There seems to be a fair amount of character assassination attempts on slashdot, and you seem to be one of the victims.
I hope that slashdotters will read your post here and realize your commitment to rational debate and perhaps take you more seriously.
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Incite and flee.