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On Software Patent Lawsuits Against OSS
Bruce Perens writes "We've warned you for a decade. Now the monster has finally arrived: patent holders are filing suit against OSS developers." From the article: "We should not be confident that we will continue to have the right to use and develop Open Source software. A coordinated patent attack by a few companies, or even one large company, could completely destroy Open Source in the United States and cripple it in other nations. Funds and patent portfolios that have been established to help defend Open Source would not be sufficient to defend it. Only legislative changes to the patent system can fully protect Open Source and maintain it as a viable source of innovation for our future."
We communists agree, the government must be removed (together with other entities with huge powers, like big corporations)
If the big fears come to pass on this, perhaps an anonymous development model could be made using currently-developing P2P encryption models. Regardless of if software patents are a political problem that may or not be fixed in the long run - the idea that a good person CAN ethically have need to become anonymous in their development of software may change the debate. Right now, the public concept of anonymous development is left to virus developers and other black-hat-types - it would be interesting if your child's educational software, or in this case model railroad software had to be developed behind the veil of secrecy.
Ryan Fenton
Just curious: if OSS basically became illegal (either by civil or criminal law) in your home country, would you be willing to move to some other country where you could be free to create?
Would you move from America to...
Canada? (Close, same language, but America's bitch in IP legislation issues)
Sweden? (Far away, different language, more intellectual freedom)
China? (Farther away, different language, sometimes repressive and corrupt government)
What is this kind of freedom worth to you?
How can anyone continue to innovate if they have to wade through an endless array of patents just to see if their idea isn't covered by some ridiculous patent.
or,
How can anyone continue to attract the investment they use to hire and pay software developers in a not-yet-making-money startup if, after investing all of that money, someone else can just skip the investment part and go right into making money off the finished work? If you have no chance of some much larger (or just slipperier) operator simply walking away with, and running a business powered by what you're investing in - how can you afford the investment?
The usual answers here would be variations on:
1) No one would just take someone's idea, that would be too obvious.
2) There are no new ideas.
3) No one should be allowed to make money from ideas.
4) Trade secrets want to be free.
5) What would RMS(tm) do?
6) Patents are great, if it's my idea.
7) Someone else's patent sucks if they thought of my idea first.
8) Patents are fine, as long as they're not just there as a lawsuit weapon. Hmmm - this last one actually makes sense, but it's a little hard to nail down in court.
Don't disappoint your bird dog. Go to the range.
The problem seems to stem from applying laws made to deal with non-abstract tangible mediums that are not very tractable to software, a non-abstract medium which is *highly* tractable. Software needs a unique set of laws, since its distinctly different from both material property or intellectual property. It could be argued that software is one of the most tractable of all mediums, other than pure imagination.
"We are all geniuses when we dream"
- E.M. Cioran
"Didn't IBM and other large players pledge their patent portfolios to FOSS in case of cases like this?"
Having a patent portfolio for defensive purposes is only useful for preventing suits from other manufacturers who want to produce stuff without infringing on those patents. They will be happy to swap their patent rights for yours. But a patent troll holds only patents and doesn't make anything. He gets no benefits from cross licensing. So it doen't matter if IBM has pledged patents X, Y, and Z to open source. A troll who has a patent on W will still sue.
From reading the posts here it is clear that most people have no idea how serious this is. RMS has been warning about the dangers of software patents for at least 15 years. He was right but has always been too readily dismissed as an extremist. It will only take one or two successful patent infringement lawsuits before the legal sharks smell blood and the feeding frenzy begins. Don't think you'll be saved because the patents are for "obvious" ideas (which, of course, they are). Once a patent is granted the legal presumption is that it's valid and it is very, very expensive to overturn it. And there is a high degree of capriciousness -- if you are right in a patent dispute there's maybe a 50% chance you'll actually win the suit -- if you don't go bankrupt first. That's why businesses usually just fork over the exortion payments.
I work with a computer system which collects data from spectrometers and predicts chemical properties. The "special" thing is the spectra from different instruments get stored on a central server and the server does the prediction (a simple mathematical operation), instead of each spectrometer having its own PC. The company who makes it cannot export this "technology" to the US because the concept is patented. This is a reasonably big research institute with their own full-time IP-lawyers. Believe me they looked at this carefully. The only way we can stop this bullshit is by doing a Darl Mc'Bride on them. Find out who they are, get an adress, hack their website, give them hell. And don't forget to complain to your local politician.
10 ?"Hello World" life was simple then
"The problem is deeper than that. What is taken away here is a liberty so obvious that noone has ever though of writing it down: The liberty to do anything with the result of a natural process - thinking. You are not allowed to use an idea that someone has patented."
Check out the Constitution. It is aware of the freedom of ideas, but when that idea has been reduced to a useful product, then Congress is given the power to enact legislation to protect that invention. The purpose is to encourage inventors to invent by giving them exclusivity--but also to give other inventors an incentive to find another solution--or invent around.
The best way to disable patents, IMO, is to publish your idea in way that clearly articulates a useful invention. A year after such publication, the publication becomes prior art, which is proof against patent.
"But how can you know? Everyone that has an idea should go to the patent office and look for a similar idea to see if (s)he could do anything with it?"
Well, another way is to wait for the patent holder to tell you to stop. When the patent holder shows you that you are infringing, then you should stop using the infringing technology until 1) you've found a workaround or 2) you have proof that the patent is invalid. I'm sure a close analysis of many patents would allow prior art publications to defeat them.
If you don't like it, then get a group together and lobby your Congressman and Senator. Or, try to get together a convention to amend the Constitution--since that's the source of Congress' power given it by the people.
What those who want activist courts fear is rule by the people.
Submitted to my congressguy (who knows if he'll read it):
I've written to you before on the topic of patent reform. I asked you to seriously consider the complete destruction of software patents because they hurt innovation.
Your answer was that the patent system is needed to allow a lone inventor or a small company to make an invention and enjoy that invention while preventing others from stealing it.
I assure you that that is never the case anymore.
What is the patent system? It is an incentive-- a way of fostering innovation by providing to an inventor the promise that his invention will belong to him long enough to allow him to profit from it. At least, that's what it *was.*
Nowadays, anyone creating software must seriously consider developing a patent portfolio or at least hiring a patent lawyer to do research on patents that cover increasingly obvious inventions in their domain. Who must hire these lawyers? Your small company, your lone developer trying to make a dent in a larger market. Who holds these patents? Your large companies, the ones who can afford to draft and submit hundreds of patents a year, in hopes that most will be granted (and most are).
We knew the system would crash on us one day. With no help from Congress, which has seemingly turned a blind eye to a strong industry with a clear call for reform, many of the key patent-holders have tried to begin their own reform. They have tried to competely nullify the patent system with covenant agreements-- essentially, promises not to sue over patents unless sued first. The Free Software Foundation, dedicated to the freedom of people to create, use, and re-create software as they see fit, has placed a clause in their most popular license, the GPL, to do the same:
=============== QUOTE
11. Licensing of Patents.
When you distribute a covered work, you grant a patent license to the recipient, and to anyone that receives any version of the work, permitting, for any and all versions of the covered work, all activities allowed or contemplated by this License, such as installing, running and distributing versions of the work, and using their output. This patent license is nonexclusive, royalty-free and worldwide, and covers all patent claims you control or have the right to sublicense, at the time you distribute the covered work or in the future, that would be infringed or violated by the covered work or any reasonably contemplated use of the covered work.
=============== ENDQUOTE
We all see this as a good thing, and we should know. We know that the software industry cannot survive when innovation is stifled by a system that has completely failed in its task.
Where do we see those failures? I have given examples before, in the licensing of LZ compression and JPEG compression. Now we see a small company trying to assert a patent on RedHat, a leader in free (as in freedom) software development (see the articles above). A product that drives growth in the industry may be stopped for a proprietary solution that has not seen a release in three years, all over an idea that was old when it was filed.
You may not care about these individual instances. I daresay you don't, based on your responses in the past. Here is a scenario that may make it more "real" to you:
1. Software development in the United States has grown hazardous. The patent system has grown so monstrous, so useless, that it stops the very innovation it was designed to promote.
http://technocrat.net/d/2006/6/30/5032
"These two attacks are the tip of the iceberg, thousands more
are possible as software patent holders turn to enforcement as
an income producer and away from the patent cross-licensing
détente exercised by large companies until the mid-1990s."
The big monkey wrench in that equation is China, which has proven repeatedly that it has its own views on the matter of intellectual property and isn't going to meekly accept the terms dictated to it by other countries.
What? The US could impose import sanctions against China to punish it and make it to tow the line? Well, here's a more chilling thought... what would happen if China forbade its companies to EXPORT to the US for some indefinite period of time?
China obviously needs and benefits from money that comes from American corporations and consumers... but the truth is, American consumers and corporations need China a tiny bit more. Not a huge amount more... but just enough that if China told the rest of the world to screw itself, took its ball, and went home, American corporations and consumers would be howling at Washington to back down in no time.
Just imagine, for a moment, what would happen to almost every retailer in America, from Wal Mart to the person selling fake watches on street corners, if cheap imported Chinese products suddenly ceased to be available. The economy wouldn't collapse, but lots of people WOULD be very, VERY unhappy. Overnight, shortages would appear throughout the retail industry. OK, maybe a shortage of 65" DLP TVs isn't a matter of life or death... but if shortages of things like that were happening all over the place, consumers WOULD start to panic. Especially as Christmas approached. Inflation would run rampant as businesses like McDonalds scrambled to find alternate sources for things like napkins, tray liners, and Happy Meal toys, and ended up paying top dollar to get them from whomever they could find that had them in stock. All the little things nobody ever thinks of, but businesses depend upon being able to predictably restock without having to give much thought to vendor selection.
Once again, China WOULD take a pretty nasty hit if it prohibited Chinese firms from selling goods to the US... but make no mistake. The US would crack first.
If you'd like to learn more about this, read The Emerging Economic Paradigm of Open Source
And regarding the gratification from writing a "duplicate", it doesn't work that way. Consider Firefox, or Apache: not duplicates of anything, although there are other products in the category. Or Linux: it works the way the POSIX standard says it should, so it shares a common interface with Unix. But everything else about it is different.
Thanks
Bruce
Bruce Perens.
Well, here's a more chilling thought... what would happen if China forbade its companies to EXPORT to the US for some indefinite period of time?
.... yet.
A Chinese boycott of sales to America is the least of their power.
China is the main financier of the American government's debt. Yes, that $400 to $500 billion Baby Bush has put us in the hole for fighting his family's personal vindetta in Iraq at America's expense (both in tax dollars and human lives).
If China gets really annoyed with us, they can simply stop buying US Bonds and put the government (and the economy) into freefall overnight. Yes, thanks to Bush's unprecedented deficit China could engineer the complete collapse of our economy, and probably our ability to govern, that easily.
If they decide they don't want to go that far, they could do anything from a boycot more limited than you describe (refuse to export some product we really need and watch our economy spasm without actually collapsing), to invading and annexing Taiwan (goodbye affordable computing for the next 5-10 years).
Really, Bush has put us so far into hawk to the Chinese that they really can call the shots, anytime they like. They just haven't seen any advantage in doing so so blatently or crassly
But with America's current diplomatic and strategic incompetence, one is forced to wonder how much longer it will be, and conclude "probably not much."
The Future of Human Evolution: Autonomy
I should add: I support the mandatory disclosure of source code and a form of executable for any software patent that is filed.
1) it is possible to make this a requirement without changing the law, only new regulations need to be put in place
2) that would make applying for a patent a tough decision:
- are you so sure that your patent will be granted that you can release its source code (and then let anyone take advantage of it should the patent not be granted) ?
- is the true and full disclosure of your invention in source code form really worth the temporary protection you will get from a granted patent ?