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Patent Pools and Pledges - Panacea or Placebo?
I've been wary of those patent pledges and pools from the beginning. There's an awful lot of dishonesty in these all-too-obvious attempts to curry favor with the community and reassure customers. While the jury is still out on some of those projects, none of them has so far delivered a single compelling reason for me to believe that they're really going to be more than a placebo. Some make it sound like these pools are a bulletproof vest for open source, but it's more like you have a coin in your pocket and hope that a bullet will be deflected by it. Too bad the coin isn't even in a place where someone would usually shoot you.
While I do agree that open source should protect itself as best as possible within the legal framework that exists, cheap PR plays are not a substitute for a real solution. The pledges that I've seen so far had all sorts of shortcomings:
- Some pledged patents are of little or no value. Among IBM's 500 patents "contributed" in January, there were some that had nothing to do withsoftware, and many were up for renewal soon, with no guarantee that they'd actually be renewed.
- The pledges typically just relate to particular open source licenses (sometimes rarely-used ones) or projects, such as the Linux kernel (which is only a small part of a standard Linux configuration).
- Some pledges are revocable or haveloopholes such as vague conditions under which the patent holder can sue you anyhow.
- So far the quantities of patents involved have been negligible compared to the total number of issued software patents, and even to the number held by the "generous donors." Even in the long run, there'll be hundreds of thousands of software patents in the world that aren't subject to any pledge. In his speeches, Richard Stallman likens software patents to mines in a park: If there are 90,000 mines in the park instead of 100,000, it's still far from being a safe place to walk.
Even if you don't look the gift-horse in the mouth, there are fundamental problems that even the best pledges can't solve:
- You can't practically go about your programming job by always looking up a patent pledge database whether it contains just the algorithms you need. I don't think any programmer would seriously do that! And even if algorithms A and B are covered by patents in a pool, there may be a patent C that covers your particular combination of A and B, and that patent C may not be in the pool.
- Pledges which exclusively relate to open source aren't too valuable. Software under the BSD license is used in closed-source projects all the time. A project like PostgreSQL, which already felt forced to replace a caching algorithm due to an IBM patent, couldn't just base its development decisions on open source considerations alone. Then there are dual-licensing models for GPL software (MySQL is a well-known example) and companies that sell closed source software to finance their open source development efforts.
- These pledges are only made by organizations that don't intend to sue open source projects anyway. Patent holders who are potentially hostile, be it for strategic or purely financial motivations, won't pledge anything. It's nice to firm up the commitment of your allies not to act against you, but it doesn't reduce the number of enemies.
- If a company promises not to sue open source projects over a certain set of patents, it still doesn't mean that those patents can be used by open source projects for retaliatory purposes. However, the patent game is one of mutually assured destruction, like in the Cold War. If NATO hadn't had a single nuclear weapon, and the Soviet Union had promised not to use something like 5% of its nuclear arsenal, then we probably wouldn't live in freedom now.
- Companies usually can't even make their patents available for the purpose of building a counterthreat because those patents are already subject to existing cross-licensing agreements. If a new entity (such as the Open Invention Network) started acquiring unencumbered patents, then one day they might be able to grant a license to a company like Microsoft in exchange for a covenant not to sue Linux with its own patents. That could indeed make a major difference (even if only for Linux), yet it wouldn't help against trolls that have no products of their own. And a strategic aggressor could secretly arrange for such a troll to do the job.
No matter how you look at it, the only way to reliably solve the problem is at the political level: through legislation that excludes pure program logic from the scope of patentable subject matter. Sure, there's no shortage of people out there who say this can't be done, but they're all wrong. We've been toldmany times that the European software patent directive would come one way or the other -- until we got the European Parliament to reject it by a landslide of 648-32. The German Bundestag and Spanish Senado unanimously backed our central demands. The new German government has just vowed to counter, at the international level, "the trend to seal off markets, among other things by means of patent law." The time is ripe for legislative action.
Some members of the legal profession claim that software patents are an unalterable fate because theyhave a vested interest in sustaining the system. It's a tall order, but definitely possible, to change the legislative framework in our favor. In every parliamentary democracy.
Especially in the field of software, the patent regime no longer serves the public interest. In a perfect democracy, software patents would already be history. In the suboptimal democracies in which we live, there are special interests that oppose changes. Those have influence and deep pockets, but at the end of the day the most valuable currency in politics is voter popularity.
If all the companies who have pledged patents to open source, or who have contributed to those pools, decided to seriously campaign for legislation that abolishes software patents, then the problem could be solved for good. As long as they don't do that, they're not for real. Some may even have a hidden agenda of creating patent pools to gain effective control over the open source universe. We've got to watch out.
Florian founded the NoSoftwarePatents.com campaign. For his political efforts against software patents, he has been named as one of the "top 50 most influential people in intellectual property" according to Managing Intellectual Property magazine and is a candidate for the title of European of the Year.
Not to say it's a PR "stunt" or "trick", but it makes certain vendors conspicuous by their absence from these groups. If you've got a town where there's a big organization pledging to protect the environment, but the biggest company in the town isn't signing on, it leaves an impression.
My turnips listen for the soft cry of your love
The problems with intellectual property of all sorts (copyrights, patents, trade marks, service marks) stem from a fundamental belief that competition is the most efficient mechanism for progress. This belief means that government's role is to protect players from excessive competition by granting intellectual property monopolies. Unfortunately, this has the side effect of strengthening the cultural forces against collaboration. Open source software development, which is fundamentally a collaborative model (collaborate to build code, collaborate to share code, etc.), is showing that such a model can be successful. However, given the competitive intellectual property culture, open source models are extremely vulnerable. My thought: over the course of the next few decades, the software world will become a proving ground to demonstrate that collaborative economic models are superior to competitive economic models. However, the vested interests in the competitive model will only very slowly come around to embracing the collaborative model.
Helping with organizational effectiveness is our job.
Or is it all about wealth transfer from the innovators to the bureaucratic/legal ecology that has sprung up around software patents.? One is tempted to cynicism.
Get thee glass eyes, and, like a scurvy politician, seem to see things thou dost not.--King Lear
They'll go after IBM and other high profile contributors
Remember: the key feature of a patent, the thing that sets it apart from copyrights, is that it's possible to infringe even though you were never aware of the patent, never aware of the patent holder's development or design before you designed yours, even you you, yourself, without help from anyone, developed the product that ended up infringing. You do not have to copy something to infringe. You can independently invent something, and because it turns out to be a similar design to a patented design you had never heard of, you will be infringing.
That's why they're unfair. Why do we have them? Because sometimes the "race" is necessary to spur invention. But in the midst of implementing that principle, we forgot why we were implementing them and thought, wrongly, that they're fair after all, that it's legitimate to apply them to practically anything. We made a mistake in letting patents be universal across inventions, rather than restricting them to specific inventions society had deemed, through elected representatives or otherwise, especially important and urgent. We made a huge mistake in letting patents transcend inventions and go into programming and business practices coupled with that universality.
Patents need to be thrown out. If we want to reward inventors using a "First to invent" scheme, let's do it fairly, and introduce competitions and bonuses for specific, named, inventions that are generally wanted. The X-Prize was a reasonable idea. An eighteen-year monopoly on space wouldn't be. Those who promote patents think the latter would be more legitimate, reasonable, and required, than the former.
You are not alone. This is not normal. None of this is normal.
Patents are about having the confidence to share your methods and ideas while still being able to profit off them. Without patents, you choose between either publishing your ideas OR making money. Patents allow both. But since money usually rules such decisions, without software patents you'll tend to get a lot of secretive inventions and methods, and less overall innovation because people can't build on each others' work. They are inherently litigation-prone, since only the court determines whether a competitor's project infringes, but as the author says, they set up land mines in the path of anyone trying to take advantage of your invention without paying you. I don't think it's coincidence that the nations with solid IP laws tend to do better economically.
As to patents and open source, well, obviously if open source fails to innovate they are at constant risk of infringing on other people's patents, and have a vested interest in abolishing patent law as it stands. The common cry of "why doesn't someone write an open-source version of that app/service/technology" is an admission that closed-source was the innovator in that realm-- and I hear that a lot.
Instead of eliminating method patents on software methods, I think basically only two things need to happen: 1. The threshold of "non-obvious to one trained in the art" needs to be way higher than it is today, and 2. The primary detractors of software patents (ie. open source) need to start leading innovation instead of following it, thus either acquiring their own patent library or putting enough in the public domain that patent worries in a given area are irrelevant.
E pluribus unum