Patents and User Protection In OSS

missing_myself writes "Linux.com has nice summary on 'How major distributions are dealing with potential violations of patents and trademarks, cryptography, packaging proprietary software and consequential damages' from Bruce Byfield (a journalist from OSTG)." From the article: "Slowly, some commercial distributions are taking a different route. In the last few years, indemnification has become an increasingly important issue in FOSS communities, largely because of the SCO-IBM case. Claiming ownership of Unix, SCO alleges that IBM has allowed copyrighted code to pass from System V Unix to GNU/Linux. Although no evidence has been released and the trial is not scheduled until February 26, 2007, the issues in the case have made both commercial and community FOSS participants reevaluate their practices."

Comments

Copyright infringement by IBM?

[fatboy]

Wait a minute. I thought the allegations of copyright infringement by IBM were dropped from the case over a year ago.

I thought this was now a simple contract disagreement.

Is there a 4th amended complaint?

Re:Wishy-washy

[kebes]

I agree with what you say, except:

Protecting intellectual property is good.

Even if applied "properly," I question the validity of the assumption that ideas can be "owned." The term itself is misleading and two major branches of intellectual property (copyright and patents) are based on highly dubious assumptions.

The arguments are extensive, and others have framed them far better than I can. Consider reading "Information Liberation" by Brian Martin (available online, of course), in particular Chapter 3: Against Intellectual Property (also available in PDF). There are many others interesting texts on the subject.

In short, I think a fairly compelling case can be made for "intellectual property" being, at it's core, a rather "bad" thing.

Re:still theoretical

[Macadamizer]

I guess it's valid since we do have cases where people were sued (even if the claims were false in the end). So having insurance to cover court costs against frivolous lawsuits is indeed necessary. That, however, to me points to a major flaw in the current legal system: we need insurance to continually financially protect us from frivolous lawsuits. It should be easier to avoid baseless accusations, but it isn't.

I guess my question would be, how do you define "baseless?" Currently, under both federal and state rules, a party bringing a lawsuit -- and their lawyers -- can be held liable if they bring a truely frivolous lawsuit. Under the federal laws (rule 11 of the Code of Civil Procedure), the lawyers and the party bringing a lawsuit have an affirmative duty to determine that a lawsuit is not frivolous before they file.

Now, frivolous or baseless probably means different things to different people. A lawsuit won't be dismissed as frivolous if there is a reasonable theory that can support the lawsuit -- it doesn't matter if the theory is likely to win or not, just that is is not unreasonable. The idea is, let the facts come out, and we'll see if it's a winner or not. Of course, that means you have to defend yourself, but the tradeoff is greater access to the courts versus greater difficulty in getting cases thrown out right at the begining.

And remember, relatively few lawsuits ever get anywhere near trial -- most cases get disposed of in pretrial motions, or get dimissed. In the federal courts, less than 2% of filed cases get decided by a trial. And if a case is really, truely baseless, it will not survive a motion for dismissal, which is the usually first thing that happens once a complaint is filed.

If you want to have a system that gets rid of "truely baselss" claims before things even get started, you would need to first define "baseless," and then figure out how to sort out the baseless claims from the claims with merit. Personally, I think a strengthening of Rule 11, and enforcement of Rule 11 more often, would serve such a gatekeeper role without requiring an overhaul of the legal system. If Rule 11 had real teeth, lawyers would thing twice before filing a case that could cost them money, or their license, and clients would think twice before running immediately to court, because it would cost them money and because they might not be able to find a lawyer to represent them.