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."

Comments

Anonymous development model

[RyanFenton]

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

Would you move to a free country?

[DoofusOfDeath]

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?

Re:Would you move to a free country?

[darnok]

Interesting question.

My partner and I are at the point where we can see retirement in the next several years. At that point, neither of us want to keep living in a house in the suburbs, so we're talking about where we want to spend the rest of our lives.

*If* we move overseas, which is maybe a 20-30% chance, then I'd lean strongly towards an OSS-friendly country. I'd like to think I can spend a sizeable chunk of my retirement time writing and/or improving FOSS, because I've done OK out of using it and would like to give more back than I have to date. If doing that means I have to worry about infringing patents etc., then I'll give serious thought to what I'll have to do to remove that concern, and if we're already planning on moving countries anyway, finding a non-software-patent regime starts to become a significant factor.

For what it's worth, quite a few of my work buddies are thinking along similar lines. It's conceivable that this could result in a noticeable brain drain of still-highly-productive IT staff in their 40s-50s-60s over the next several years, and that might start to have a financial impact down the track. Even us taking our retirement dollars out of the country and spending them elsewhere would make a dent in local economies.

Re:Turn it around...

[Bruce Perens]

Well, patents are a great mechanism for lying to investors. Every one says you have a monopoly on something, and usually you don't. Indeed, 95% of patent claims have documented prior art in any college library these days. And the last thing any new company that makes real products needs is litigation. So, maybe the solution is for investors to wise up.

Bruce

Re:IBM?

[J.R. Random]

"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.

Re:Ah, it's all clear to me now

[Bruce Perens]

Recognition was posed as a model for Open Source developer motivation before there was much business involved in using Open Source. These days, a lot of Open Source writing is for use by the business where the software has been written, and since that business gets its income from doing something else than writing software, it is economicaly best for them to share the effort of writing and maintaining the software with other, similar businesses.

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

China can collapse the US economy at any time

[FreeUser]

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?

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 .... yet.

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."