OSDL Says Patent Threat to Linux is Receding

blacksilver writes "The chief executive of the Open Source Development Labs (ODSL) has said that the threat facing Linux from software patent-infringement claims has receded. From the article: 'Lots of people who hold a lot of patents have looked at this issue, and nothing's come of it ... There's always been a suspicion that some of them [the alleged infringing patents] were held by Microsoft, so this could be an issue ... our customer advisor people speak to people, including major customers who run both Windows and Linux, and they say it's not an issue,'"

Comments

Customer Responses?

[RoadDogTy]

But, our customer advisor people speak to people, including major customers who run both Windows and Linux, and they say it's not an issue

Are customers who run Windows and Linux really the right people to be asking these kinds of questions? Shouldn't they be commenting on Microsoft (and other companies') actions instead of random customer opinion? Seems kind of random.

Re:Customer Responses?

[Chr0nik]

That was my impression as well, this seemed like a non-story that was trying really hard to be a story, and almost got there, but didn't quite make it.

Re:Customer Responses?

[typical]

Also, it's not like OSDL (geek haven central) is particularly free of bias. I'm sure that OSRM would probably have a very different take on things.

Frankly, I don't think that patents are a big threat to Linux. Linux is clearly beneficial enough and important enough to enough people now that there are some heavyweights that would be willing to help support legal issues (IBM and Novell, for example, are probably not going to sit and watch as someone tries to claim that a primary product of theirs is illegal).

Linux is an exceedingly unattractive target for litigation for *anyone* other than maybe Microsoft (which has a competitive motive). The core Linux community is bone-dry WRT money relative to similarly influential non-OSS software offerings. There are a large number of large companies who would probably commit to defend Linux if their products were at risk (and a challenge to the legality of the kernel would certainly do so). Linux has a cute mascot and is made by a lot of smart, nice, dedicated volunteers, and is really mediagenic. SCO started out with the Wall Street Journal running articles like "This is One Time You'll Want David to Lose to Goliath" (David being SCO, Goliath being Linux) and wound up with their CEO universally disliked, suffering death threats and a steady stream of negative commentary, more dirt-unveiling background research than I've *ever* seen a politician have to undergo, scads of folks (armed with legal degrees and otherwise) volunteering to find every loophole in SCO's claims and undermine their attacks...it was Not Fun to be SCO. I can't imagine many companies who would want to do this.

The final issue is that while copyright is pretty well respected by most developers out there (it's what lets most of them make a living), software patents are a whole different store. A software patent lawsuit against Linux, given the *huge* number of people involved in the European effort to defend the software world against software patents, might actually be the spark that would prevent people in the US from filing software patents in the future.

Just to be clear..

[sedyn]

Copyright threats against linux are still alive and strong, right?
We wouldn't want the OSDL to spread such FUD among SCO investors!

Re:I don't see how there could be a patent threat

[b3x]

what color LDAP are you using?

What would have been the result?

[JoeShmoe950]

If a company claimed infringement over a patent which the open source movement had prior art on, what would the ramifications have been? Are there any lawyers out there?

Re:What would have been the result?

[alexfromspace]

I am not a lawyer, but I can make a good guess that if enough of such cases (prior art in open source for existing patents) are handled by courts, it will go on to tell the legal and the lawmaking branches of government that the patent system is obsolete. It will create legal precendents for favoring open source over patents in the future, as the open source is actually effective in promoting innovation, unlike software patents.

Re:What would have been the result?

[Anonymous Coward]

Are there any lawyers out there?

Yes, there are many. That's the problem.

Re:What would have been the result?

[Anonymous Coward]

If there indeed was prior art from the open source community, which another company had a patent on, the patent would go under review (well, only if anything was brough up about the patent being invalid). If the patent is found invalid (I will list how below), it will be removed, and the lawsuit would be dropped.

You can get a patent if:

1. The idea is novel and nonobvious (IE there is no prior art)
2. There is prior art, but you apply for a patent within 1 year, and have been diligent.

I hope this explains you question.

Perceived threat is still a threat.

[EmbeddedJanitor]

For the most part, the patent and other IP stuff is just FUD. However, it can be a highly disruptive force as our friends at SCO have shown us. A threat does not have to be legally enforcable or binding to have its desired effect. A perceived threat is just as effective.

When people eat the FUD, they don't necessarily believe it. Instead they just add this to the risk pile: "Aww heck I don't want to have to possibly go to court...".

Re:Perceived threat is still a threat.

[tomstdenis]

*cough* *cough* NSA licenses GF(p) curves from certicom.

What the fuck is that about? [hint: there are no patents on GF(p) point operations or DH/DSA].

Sometimes if you talk fast enough and have a classy enough suit you can convince people of anything. At the ceritcom ECC con- [can't say convention cuz that would be giving them too much credit] this year it was all about how "certicoms ECC technology was leading the way" etc cough cough gag!

All I have to say is this

"250,000 patents filed every year, and still no microwavable safe metals." :-)

Most patents are just nuisance pointless bragging patents. Oh we "invented" a way to do something trivially different from what you are doing. Or fuck, let's just patent something other people do but word it up all in our own lingo.

Like the MSFT patents on cron jobs...

The reason why no patent suits have been brought against Linux is because they wouldn't hold ground in court. I'm sure on paper there are patents that Linux somehow violates. I just wouldn't count on them being legitimate.

Tom

Re:Perceived threat is still a threat.

[Anonymous Coward]

Yup. I definitely agree. I have approx 10 patents (lost count). Of these over half are crap, IMHO.

Linux does violate some patents (eg. MSFAT), but most (eg. MSFAT) are crap. A patent is still a patent until it is thrown out by a court of law. If is easier for MS to use this as a bit of heat on smaller players than to make a BigIssue of it and take on the Linux elephant (inc. IBM etc). If they do that then the MSFAT patent gets taken away from them and they lose leverage.

Re:Perceived threat is still a threat.

[tomstdenis]

I too have a patent [well application filed, it'll probably be granted knowing the state of affairs]. I too think it's crap. It was part of my work at my former $EMPLOYER. But whatever, occasionally I got to do a cool hack or two.. It was an ok job.

In my work [crypto development] I just ignore them. Any of the protocols I use are either freely available or possible patents are so fucking ludicrous that they would never be brought against my public domain projects. :-)

Tom

Issues With Issues

[Doc Ruby]

Is "threat receeding" == "not an issue"? Maybe "no threat" == "not an issue". Maybe we've just euphamized "problem" to "issue" so much that now we can't even distinguish between "no problem" and "no issue".

Re:Issues With Issues

[Doc Ruby]

Moderation -1
    100% Redundant

TrollMod has irony, if not a sense of it.

283 Patents?

[thebdj]

So they say that Linux potential violates 283 software patents? Now I do not know that they went through every software patent, but that is WELL below the number of issued software patents I am sure, so was there really much of a threat anyway? Besides that there is always the potential of any patents being invalidated in court even if it ever happened.

I do not see why a corporation would be scared from Linux by this potential though. You are talking about a patent infringement that would affect the companies and people distributing Linux and not the people using it. I really think everyone sort of got scared about this at first, but realized the threat was not as bad as everyone was originally stating.

Re:283 Patents?

[Red Flayer]

"You are talking about a patent infringement that would affect the companies and people distributing Linux and not the people using it."

It could definitely affect users as well as distributors. Should licensing to a distributor be denied, those users could get screwed by not having any support for their distro.

Not only that, but IP rights can be enforced on the end user as well as the distributors, since they are also using the IP without a license.

Re:283 Patents?

[thebdj]

So on your argument NTP can sue every user of one of RIM's Blackberry devices?

EOLAS can sue everyone using M$ Internet Explorer.

I do not think the courts would much agree with you on this one. The companies are not infringing the patent, the producer/distributor of the software are by making products that infringe on the patent.

Re:283 Patents?

[Red Flayer]

Yes, actually, they could. But it's not worth the cost of doing so, both in terms of litigation and in terms of collection. It's also hard to prove damages when the end user is not involved in reselling the technology.

US Code, pulled from the wikipedia article on patent infringement (emphasis mine): "A person directly infringes a patent by making, using, offering to sell, selling, or importing into the US any patented invention, without authority, during the term of the patent. 35 U.S.C. 271(a)"

Source: http://en.wikipedia.org/wiki/Patent_infringement

Re:283 Patents?

[nsayer]

So on your argument NTP can sue every user of one of RIM's Blackberry devices?

EOLAS can sue everyone using M$ Internet Explorer?

Yup. You'll recall that SCO sued an end-user of Linux. This caused at leasat one outfit to offer to indemnify their customers (that is, to pay for their defense and any damage judgements should they be sued).

Good PR!

[NCraig]

Mueller has published an opinion piece on popular tech news blog Slashdot, in which he argues that companies who pledge not to use their patents against Linux are guilty of 'cheap PR plays'.

As opposed to the not-at-all-cheap PR play at hand? But hey, Mueller's "customer advisor people speak to people." Very comperehensive.

Among the companies that don't support the Patent Commons initiative are Microsoft, HP, and Oracle. The article mentions the claim that Linux potentially violates 283 patents. Unfortunately the list of infringements was not released, but wouldn't the OSDL be wise to do some research in order to determine the validity of the claim? Then they would know for certain if any of the supposedly sullied patents belong to the above corporations.

But hey, his people speak to people.

Receding, like before a tsunami

[praedictus]

The deepsea floor cracks with the rumbles of Microsofts declining sales as software becomes "good enough". As the developers wander out into the seabed picking up the flopping fish of patent infringing code, the wave of lawsuits builds out of sight, until it crashes in with its weighty force, SCOuring all in its path. Stick to high ground and be safe!

Re:Receding, like before a tsunami

[jesterpilot]

Or, move to Europe. There have been few tsunamis in Europe in the last centuries. Maybe that would make the US-gvrmnt think about their patent law.

Only "commercial" Linux ever worried...

[pla]

The entire boogeyman of some company destroying Linux via a patent suit never really threatened most of us in the first place.

Why, you might ask?

Because most of us don't really care. Patents count as a silly abstract nuissance for business-folk, not for hobbyist developers. Treble damages? 3 * $0 = $0. No doubt some lawyer will point out that other dangers exist, but really, I (and I doubt most of us) really lose sleep over the idea that our use, or even code contributions, of Linux may violate some obscure submarine patent waiting to spring out at us.


Or to look at it another way: If the USSC banned Linux tomorrow due to it infringing some patent - How many of you would run out and buy XP to "fix" all your now-illegal machines?

Re:Only "commercial" Linux ever worried...

[ozmanjusri]

The entire boogeyman of some company destroying Linux via a patent suit never really threatened most of us in the first place.

The goal of those companies is not to destroy Linux, it is to make money. Linux is a threat to their income producing activities, so they will attack it to reduce the threat and maximise their income.

A head-on attack using patents is counterproductive because it would result in the patent process being tested in court. Whatever the outcome, that bullet would have been fired. This way, whenever Linux (or any other FOSS competitor) starts gaining traction, the FUD can be rolled out for as long as it takes to slow down adoption.

They'll lose in the end, but it doesn't matter because every day they delay is millions more dollars in the bank. Actual litigation consumes resources (money, influence) that are valuable to the company. FUD just requires a compliant media and plenty of cheap shills.

Re:Only "commercial" Linux ever worried...

[Kjella]

Because most of us don't really care. Patents count as a silly abstract nuissance for business-folk, not for hobbyist developers. Treble damages? 3 * $0 = $0.

On a general basis, just because you are doing something for free does not mean there are no damages. If that was the case, all those free warez copies of WinXP would be ok too. It is more likely because there is little or no money to be had by suing anyone.

A delicate balance

[dcavanaugh]

The patent threat is held in check because of a deadlock of sorts. MS has some patents, but then again so does IBM, Oracle, etc. The first use of patents by MS against Linux will trigger retaliation from MS competitors. If all of the patents were enforced simultaneously, the IT industry would grind to a halt.

The best we can hope for is a massive proliferation of patents. The more, the better, so as to create gridlock. USPTO likes it this way -- more power to 'em.

Imagine that patent as the paper equivalent of a handgun. They can be used for crime or defense against crime. Armed criminals are a real problem -- they can rob people at-will. But if EVERYONE is packing a .44 Magnum, armed robbery becomes nearly impossible. Some people might want to take all the guns away, but it's easier (and almost as effective) to make sure everyone has one.

Re:A delicate balance

[ThosLives]

"How about a nice game of chess?"

Re:A delicate balance

[_the_bascule]

A very interesting point, you have clearly highlighted that the current patent situation in global IT basically amounts to the same thing as MAD did/does. You used a handgun analogy though :)

Re:A delicate balance

[mbk6]

This is an american philosophy, I'm SO thankfull that this isn't the mentallity in Europe! Patent infrigment isn't an issue either really. I know some guys who has taken a patent in the US. while living here in Denmark, they get a shitload of money, and the patent only works in the US. The american situation is laughable.

Re:A delicate balance

[dcavanaugh]

Having no software patents is certainly preferable. But to do that, you have to keep the cat in the bag. Indeed, the Europeans have it right (so far). My description of patent gridlock is a distant second to preventing them in the first place. Once the cat is out of the bag, gridlock is the next best option.

Re:A delicate balance

[Anonymous Coward]

I don't like that analogy. The right to self defense is a natural human right (god-given right if you prefer) that every individual is entitled to. It is a product of human nature, not government. Government may attempt to secure the right to self defense, or it may attempt to oppress that right, but it cannot grant that right because it was derived from human nature (god if you prefer) long before organized rule was invented.

By contrast, patent law is a product of government. Patent law is not found in nature, or granted by god. It came about through an initiation of force (government), not human nature (voluntary association) as human rights do. Before government, the concept of somebody "owning" an idea could not exist.

While it would be possible to have some form of IP in the theoretical voluntary society (where coercion is the only thing prohibited), it would be limited to what can be achieved through voluntary contract. What we know as IP today is not achieved through voluntary contract; it is achieved through the force of government.

Re:A delicate balance

[jesterpilot]

If everyone carried a .44 Magnum, there would be no less armed robbery, only the scenario would be different: as a robber, make sure you shoot first, and aim better. Then take the money. That's not so hard, since a normal citizen has better things to do than holding a gun pointed at anything that moves. After a few hits, it will become more easy, since you've learned to shoot from the back, at a moment the victim doesn't expect it, and shoot well. So instead of robbery, we get kills-for-robbery.

However, in the case of patents, it's not that friendly. The robber can shield himself from the gun of his victim, by not producing anything. These robbers exist. One day, some big corporations might outsource their warfare-patents to a small company, which doesn't produce anything, but holds a lot of trivial patents and has a bunch of lawyers skilled in shooting from the back, at a moment least expected...

Re:I don't see how there could be a patent threat

[miffo.swe]

Firstly i think you confuse OpenLDAP with Linux. OpenLDAP runs on Windows amongst other things.

LDAP on linux isnt as hard as many think. Ive just installed Open Enterprise for the first time and i find it very easy to use and setup into a functional network. It took me two days until i had everything working, not to shabby considering most time was spent on fighting the Windows machines into submission. Skolelinux has a nice setup with LDAP thats very neat. RedHat has their offering as well wich i look forward to try later on.

Back to the drawing board...

[NaijaGuy]

It was a dark and stormy night for the enemies of Linux...their last great hope dashed, they moaned about the dearth of weapons at their disposal. Even though Microsoft tries to hire creative people, they realized too late that this criteria had not been applied to the hiring of their legal department, and SCO had never even heard of creativity, so they decided that maybe learning more about creativity would be the best next step. But someone pointed out that this would be counter to their ultra-secret missional mantra, so that was nixed right off the bat. Any other suggestions?

Re:Back to the drawing board...

[aztracker1]

From a recent interview experience I had, it is my opinion that Microsoft isn't interested in true creativity, they want C.S. degreed weinees who can recite definitions of low-level development constructs... This left such a sour point to me, that I am now moving my servers *away* from Windows, even though my software is properly paid for, and licensed... they won't be getting *more* money from me...

I also won't be recommending any more 6 figure purchases based on their technology.

Harder to kill Linux with patents

[external400kdiskette]

Linux is de-centralized so it cant ever be killed like other companies can by patents and other lawsuits, just ask SCO, you'd literally have to win against hundreds of companies worldwide and even then people are always going to be modifying the source on an individual level. It's everywhere.

Not troll-proof

[PMuse]

Patents are not a shield. They are a sword. When a competitor tries to stab you with his patent, you draw out your own and, all else being more or less equal, he may agree to leave you be rather than risk you killing his business.

Patent "trolls" are not competitors. They are file-drawer companies that don't make anything and don't sell anything. You cannot kill a troll's business with your patent sword because they have no business.

Patent pools are no defense against trolls. Linux companies are no safer than anyone else when the troll demands a piece of their profits.

Re:Not troll-proof

[Anonymous Coward]

"Linux companies are no safer than anyone else when the troll demands a piece of their profits"

Linux companies are fairly safe because by and large their profits are much less than the profits of some of the companies using Linux. Patents cover "make, use or sell" and a troll would much rather go after a big company without much underlying knowledge of the workings of Linux than a small company with intimate knowledge of what makes Linux tick. Trolls don't care about competition just how big your pockets are.

translation

[Anonymous Coward]

Our software patent supporting corporate backers have told me to say that these patents are no longer an issue.

In other news, the man pointing a loaded gun at your cranium is no longer a threat.

Re:Pantents usage..

[Rattencremesuppe]

Maybe you shoudl be able to patent, the hole source code of a program,

Why? The whole source code is already protected by copyright

IBM's Big Stick?

[geoffrobinson]

Maybe a lot of patent holders know IBM, or other companies holding a lot of patents and have an interest in Linux, could fight fire with fire.

This just in...

[Billosaur]

Dateline the Mediterranean: the estates of Plato and Aristotle are claiming that Linux infringes on their patents for "logic", since logic is an intrinsic part of the operating system. There is no word on whether suits will be filed with the World Court.

I say this a lot -- the idea of the software patent is absurd, as much so as patenting genes. Patents in the United States were originally thought of as a means to allow Federal support of science. The idea was to stimulate creativity and industrial innovation and allow inventors to reap the benefits of their inventions. The patent process was meant to be strictly controlled and only the most original ideas and variants on common ideas were granted patents.

Software is generally a commodity, not an invention. If I come up with a novel way of parsing files, storing data, or even creating better processing throughput, perhaps that may be thought of as unique, but the fact is I'm using a programming language that others have access to as well as systems others have access to, and there's every possibility that someone else may have had the same idea.

It comes down the fact the ideas are not proprietary -- anyone can have them. What you choose to do with them is your business. Frankly, I like the Open Source approach, simply from the standpoint of it being a sharing-the-wealth system, that avoids a lot of reinventing-the-wheel that goes on in this world. It gives everyone the opportunity to advance systems and apply new ideas to technology. It is the complete antithesis of the patent model, as it presupposes that developments in software are to be shared, not hoarded.

This whole linux patent business is not over by a longshot, especially since Microsoft has not enterred the fray.

Re:This just in...

[PhysicsPhil]

Software is generally a commodity, not an invention. If I come up with a novel way of parsing files, storing data, or even creating better processing throughput, perhaps that may be thought of as unique, but the fact is I'm using a programming language that others have access to as well as systems others have access to, and there's every possibility that someone else may have had the same idea.

Modifying your statement slightly:

If I come up with a novel widget, perhaps that may be thought of as unique, but the fact is I'm using the laws of physics that others have access to as well as systems others have access to, and there's every possibility that someone else may have had the same idea.

It's not clear you're arguing against software patents so much as all patents. It's a legitimate case, but not one that I agree with. If someone makes a nontrivial advance in the sciences, software or not, patent protection should be available. Imagine someone creating an O(ln N) sort, a new encryption algorithm or a program for ultra-fast prime factoring. These are serious software advances, exactly the kind that the patent system should encourage.

"It hasn't killed me yet"

[Anonymous Coward]

I love the logic of that statement. You can engage in any stupid life threatening activity, and as long as it hasn't killed you yet, you can always say "It hasn't killed me yet".

So Linux can blissfully ignore the patent infringment problem, and as long as Linux isn't sued into non-existence, we can say it's not a problem.

My second favorite saying is "Remember lingerie?" from the movie Road Warrior. Maybe one day we'll be sitting around and saying "Remember Linux?"

I don't think so...

[null etc.]

When asked if this meant he had no fears about a company claiming that Linux violated some of its patents, Cohen replied: "what was once a fear has now gone".

However, as the alleged 283 patents were never named, it's impossible to say whether they are all included in Patent Commons.

That's an incredibly short-sighted opinion. "Hey, we could potentially have problems, but since no one said anything for a few months, we must be okay. Danger averted!"

...at least until two years from now, when prior to Microsoft releasing Vista, they launch a volley of 500 patent infringement lawsuits in partnership with SCO and other vested interests.

Re:Pantents usage..

[bubulubugoth]

Then, there is no need for software patents...

US campaign

[Elektroschock]

What is needed now is no protection shield against software patents.

What is needed now is an American equivalent to the European campaign effort. It is possible to abolish software patents and this is the way to go.

So where is the US campaign?

Re:US campaign

[Skiron]

"So where is the US campaign?"

MS are backing that buying the politicians 'campaign'.

Just of the phone with Darling MacBribe

[jurt1235]

According to his Software COmpany, they are still going strong. Just remember, they already demanded the 2.7 linux kernel code from IBM. They will soon go after other companies working on this secret code branch:
- Novell, you know, the compagny who actually owns the patents SCO is sueing IBM about.
- slackware: Infringing on it since the previous millenium, so more than 1000 years already
- Users: What the RIAA can do, we can do too! You run linux at home, we will sue you!

Anyway, Darling was at it again.

Re:Just of the phone with Darling MacBribe

[rm69990]

Not sure if you did this on purpose, but SCO never sued IBM over patents. It is merely a contract case. SCO hasn't even sued IBM over copyright infringement in regards to Linux, only over their continued distribution of AIX after the license termination (which is doubtful because of Novell's waiver). SCO speaks out of 3 corners of their mouth (one for the public, one for the courts and one for the SEC).

Phew!

[tdvaughan]

Urge to license rising... Rising... receding... receding... rising... receding... gone...

Re:Pantents usage..

[bdcrazy]

Two separate entities can copyright the same thing, as long as it was made independantly, there is no copyright violation. There can be only one patent holder for that thing, and the first to file usually wins
and can rake in the money from the other. (Look up Alexander Graham Bell vs Elisha Gray)

I'm not making a judgement on whether software patents are good or bad,
just a way of looking at the difference between them and why some companies
think they are better.

I've just patented...

[Anonymous Coward]

...my dick : "Automatic injection apparatus for seemen".
Any of you dudes are now owing me $100 for each ejeculation...
If you are married you may just pay $300 a month if you only fuck with your wife...
I am preparing an EULA together with my lawyers, look for it in your mailbox.

What, Me Worry?

[mpapet]

I think everyone knows that illustration from Mad Magazine?

I used to be certain it would be some kind of frontal assault on distros regarding a codec or something like that, but I've gotten a little older and am certain I don't know. I just know it's going to come as a surprise and be extremely effective.

"Chilling effect" is the phrase that sums it up.

One uncomfortable question..

[Anonymous Coward]

Why build a society based on fear?

Threat level

[prurientknave]

Soooo would you say the patent threat level is orange? or yellow?

Sort of but different reasons

[einhverfr]

You can't easily destroy Linux via a patent. To do so would require that the patent was very broad and very hard to work around. It would also have to be something core to the kernel or other core packages.

So if a patent infringement allegation was made, I bet that the patent would be worked around well before it would even make it to court. Yes, there would be FUD but that would be it. The rate of response to the issue would probably eventually become a selling point of the OS and give it an advantage compared to Windows.

So the SCOTUS is not going to ban Linux. It might ban specific code from Linux.

Yes they are

[einhverfr]

You might be able to allege that all the software they use is infringing on your patents and therefore they are barred from using this software....

Patens cover use, don't forget.

why have an internet connection

[Anonymous Coward]

where you use a firewall? What are you afraid of?

Oh, you aren't afraid of going on the net now, because you have an appropriate self defense tool and the skills to use it? That maybe it's better to have and maybe not need, than not have and possibly need?

It was a good analogy, and actually a good literal philosopy and policy.

So long M$ Lawyers!

[Bushido Hacks]

Don't let the door hit you in the ass on the way out!