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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."
Like, from fear of being sued, you mean?
Send email from the afterlife! Write your e-will at Dead Man's Switch.
The only thing that can destroy Open Source is if people stop writing Open Source Software.
Which they will if they get sued into oblivion.
TW
"Only legislative changes to the patent system can fully protect Open Source and maintain it as a viable source of innovation for our future." Legislative changes to the patent system are needed to protect innovation not just the Open Source community. 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.
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It costs too much money to buy patent reform from congress. The only true path to Patent Reform involves reforming the USPTO into a pile of rubble.
Badass Resumes
"Which they will if they get sued into oblivion."
That'll work just about as good as taking down all of the file sharers in the world. All of the popular OS software will turn into ghostwrite OS software with anonymous dropboxes in countries without absurd patent laws.
Beat that, they'll move to encryption. The company's can't win, and most of the patents are overtly obvious anyways and should be thrown out. If anything, Open Source will likely cause a patent revolution for that reason alone (just as downloaded music is changing the face of copyright as we know it).
"Victory means exit strategy, and it's important for the President to explain to us what the exit strategy is." G.W.Bush
So let me get this straight: if we make the government (who you say is backing large companies in "enforcing" IP) get out of the way so that the large companies are unfettered to do so themselves... what's different? Open Source still gets crushed. OK, so it's a different lawyer at the controls.
Granted, the whole mess isn't taxpayer funded anymore. But innovation still dies, and we aren't going to be getting a tax rebate anytime soon. The government will just put their money elsewhere (such as, foe example, picking up the tab at strip clubs for victims of natural disasters).
The problem with socialism is that they always run out of other people's money. - Margaret Thatcher
It'll work quite well. Much OSS development is done commercially -- less frequently as part of a company founded around supporting a piece of OSS, and more frequently as a part of operating a company which is building its underlying infrastructure on OSS components. If OSS is heavily encumbered with patents, then that corporate use (and corresponding support) will disappear. Sure, some OSS will still exist -- but if it's only a spare-time activity, rather than something one can spend 8 hours a day on, that provides far less time for it to flourish; this is particularly true as developers get older and have a wider array of outside responsibilities.
I've been doing work on open source software on behalf of my employers for the entire duration of my employment history. Work will become much less fun and much more work should that go away.
Most people will not bother writing ghostcode. I hate to admit it, but I would not write any more OS code if I knew I could easily get sued for it. There would still be a movement, but the status quo of OSS is not a bunch of teens in their basements writing code all night. It has grown to include large companies and very professional white collar programmers in addition to freelance individuals writing in their spare time (like me). The file sharing movement, on the other hand, is very different.
Information wants a fueled airplane waiting at the hangar and no one gets hurt.
Maybe this is a good time to move projects from bloated Sourceforge to Berlios (in Germany).
Just saying.
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
All of the Open Source software will be written outside of the US where US patent law doesn't hold. And as Open Source people aren't SELLING the software into the US its going to be tough to sue them.
This would of course be bad news until we think that Linus and Alan Cox aren't from the US anyway and Open Source is really taking off in European Govs.
Come on folks, move to Europe, claim political asylum.
An Eye for an Eye will make the whole world blind - Gandhi
I'm NOT advocating this, but I'm curious: just what does it take to get people to revolt?
I hear story after story about Americans losing, or put at risk of losing, their freedoms. Freedom to create (stifled by patents, copyright, trademark). Freedom from federal income tax (which is alleged to never have been legislated). Freedom from unreasonable search (illegal NSA wiretaps). Gerrymandering and political lobbying that reduce the voting power regular citizens. Etc.
Do we just grumble about these things and suck it up? Are we suffering from how-to-boil-a-frog syndrom, as the majority of German citizens did when the Nazi party seized power before WW2?
Don't get me wrong - I am *not* advocating violence or illegal activity. But I am curious about why peope haven't gotten pissed-off enough to revolt.
This is unfortunate for the US. If the US doesn't do something about their patent system, it is very likely that they will fall behind China and India in terms of innovation. It's not efficient for a company to have to hire a team of lawyers to defend themselves against companies looking to make a quick buck via the patent system. The resources are better spent on research and development, where the US has been a leader in for a long time.
Red Hat should pursue the judgde to conduct a simple test of obviousness of the patent:
Invite a bunch of new comsci grads who are unfamiliar with the patent and ask them to solve the specific problem in hand: mapping relational data to objects and see what they come up with. I am certain that most of them will have some sort of an automated object mapper.
I have 'invented' this technique a few times over the course of my working life in different projects. 10 years ago, 7 years ago, 4.5 years ago, each time for a different platform and each time it was fully automated (the last one was called a Persistance Facade, it was a Java implementation with objects being populated by reflection from database and database being populated from objects, everything was done automagically with an XML file that drove the conversion, and this XML file could also be generated automagically either from the DB or from the objects.)
It is just a ridiculously obvious idea and anyone familiar with basics of programming (not even necessarily OO, flat structures can be populated the same way and I had to do that 10 years ago in C,) and databases should be able to come up with some sort of a workable solution in quite a short time period.
I bet 99.99% of all patents are just as obvious for the people trained in the field in question.
You can't handle the truth.
-Software Patents will make it impossible to create a non-infringing application unless you are as big as MS or IBM.
-Patent litigation will become part of the development process.
-Overseas competition will be able to release their version much sooner because they don't bother playing the SW patent game.
Obama's legacy: (N)othing (S)ecure (A)nywhere and (T)error (S)imulation (A)dministration
Any company who wants him to stop making a competing product.
Price of hiring lawyers to take down developers: Several thousand dollars per developer
Price of eliminating all of your competition: Priceless
"-1 Troll" is the apparently the same as "-1 I disagree with you."
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?
If anything, Open Source will likely cause a patent revolution for that reason alone (just as downloaded music is changing the face of copyright as we know it).
You mean the copyright laws which are becoming more and more draconian?
This really seems to me to be the core of what's wrong with US (and soon, possibly EU, according to the article) IP law.
If it is a technical invention - a new technology - then you file a patent. That way you can profit from your innovation.
If it is something creative - something that anybody could have done, but you did it in your particular way and thus created something unique - then you are protected by copyright and thus are legally identified as the creative source, so you can be credited for your creativity.
Software falls between the cracks of the law, and so is protected by both. You have a category of products that you can't mimic without paying for it and that you can't replicate period. As far as I can see, this is only an issue because that which is protected by copyright - information - is now completely free to reproduce thanks to technology.
So, the whole problem boils down to exactly the same thing as music and DRM. It's just that the litigiousness of the US has brought it rapidly to a financial and legal head there. The only way it can be resolved while maintaining society's appetite for innovation is to come up with a new way of classifying the rights of the originator of information - be it technical or creative.
I am not the person to come up with that solution, but I do wish people would stop banging on about the brush-fire conflicts and start trying to figure out a solution to the cause of the problem.
Meta will eat itself
That'll work just about as good as taking down all of the file sharers in the world. All of the popular OS software will turn into ghostwrite OS software with anonymous dropboxes in countries without absurd patent laws.
Ok, sure, you're right. So OSS software ends up achieving the same lofty status as Kaza. I'm sure my company will jump right on the OSS bandwagon if that's the case. I'm sure OSS will have no problem attracting the best and brightest programers once they realize they get to be genuine lawbreakers.
Viva la Open Source! Long live the revolution!
Personally, I'd rather we, as a society, took the steps necessary to keep OSS from being marginalized and going underground in the first place.
TW
Some companies create software that they want to patent, but many more companies are starting to actually *use* FOSS.
Apache, Python, Perl, Samba, etc. Public institutions as are becoming increasingly dependent on FOSS as well: computer science / physics departments use Linux. City governments are playing around with OpenOffice.org and Linux. Even various military systems are now based on a complete FOSS stack: Linux, GCC, etc.
So here's my hope: the politically influential organizations that *use* FOSS will out-muscle the Microsofts and IBMs of the world who advocate for software patents. And when a showdown occurs, software patents will go away.
Another possibility is that India and China will start producing far more softare patents than the US does. I think we'd see the U.S. government take a far weaker stance regarding international IP treaties.
You can toss a big boulder into the path of a river and -- guess what -- the river doesn't stop. It routes around the problem. That is what open source projects will do. Patent suit says stop using method X, well we just invent method Y to do the same thing without infringing the patent. Project goes ahead. You cannot stop this with patent suits.
In fact, this is not endemic to open source; it happens in all areas. If you block something with a patent that people want bad enough, they will route around it, whether legally or illegally (c.f. the motion picture industry). This often leads to quality patented inventions falling into disuse because the patentholder is a bully. Something else is quickly invented to fill the same market niche and well all go happily on our way.
Now of course the trick is that rational settlements may not be possible, e.g., ACME Patent Troll Co. sues Poor Developer Harold for $1 billion in damages and won't settle for his ceasing to use the method. Even if it turns out favorably for PDH, he could be bankrupted by the proceedings. That is what we need legislation about -- the bullying of persons and families by giant corporations with near-infinite legal funds, where the cost of defending against their allegations by itself is a de facto award of damages: trial and conviction without due process.
Our intelligent designer has never created an animal that we couldn't improve by strapping a bomb to it.
Bruce
Bruce Perens.
You're absolutely wrong, and clearly didn't read the article:
It seems very much like a hobbyist who's sharing his code with the rest of the world is being royally fucked by some vested commercial interest. Much like any other OS project could be. Wanna run the risk writing code that somebody making money off the same thing will get pissed off and decide to sue you personally for millions of dollars because you're fucking with their business model? No?
It doesn't matter that we're all criminals already for other things anyway -- that's part of a greater problem in our government and not related to the problem at hand. This is something that should have been nipped in the bud, as Perens says, a decade ago.
C
The Sun is proof that we can't even do fire properly.
This is unfortunate for the US. If the US doesn't do something about their patent system, it is very likely that they will fall behind China and India in terms of innovation.
But the U.S. is doing something about it. They're pressuring China and India to adopt US-style IP laws.
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. 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?
Pathetically ridiculous, I know, and yet, that's the way it is today. How can one defend such a horrendously biaised set of laws is still a mystery to me.
As far as suing is concerned, plenty of **AA consortiums have already answered that question.
Write boring code, not shiny code!
You're omitting a huge step between having the idea and delivering a product - there's the whole process of specifying requirements, designing the product in detail (thousands of decisions, not just the part covered by a patent), developing it, debugging it, testing it, writing documentation, training support people, training pre-sales and sales people (if needed), etc.... All of this takes a huge investment, resulting in the core deliverables (software and documentation) being protected by *Copyright*.
Software patents are really only useful to act as a roadblock to other companies, and in particular for patent trolls - they don't stop a truly motivated competitor from replicating your software product in a cleanroom environment, as long as they can code around the patents, which should virtually always be possible.
"Making money off the finished work" in this scenario would imply taking the copyrighted software and illegally selling it - copyright protection is more than enough to stop this. Patent protection is simply unnecessary for a thriving software business, as long as it is reasonably diligent in its use of copyright and trade secret protection.
Notice I put the additional information link at the bottom. Probably no one will look at it, that's why it's at the bottom. The Amicus Brief I inlined. Since it is being heard by the supreme court, it's a Washington issue and more likely to actually be of interest to those inside the beltway.
The title is misleading, the fact is that viable software development activities for any company or individual who dont have millions in the bank or a big patent portfolio to counter-intimidate with, open or closed source, are under attack by holders of software patents that cover obvious or fundamental operations. Yesterdays software innovations are todays status quo practices, citing the object relational bullshit in the article as a perfect example - that is if you believe there isnt prior art in the first place. Perhaps we should make the patent officers liable for damage caused by stupid patent approval, i bet theyd get thier shit together then.
I was crazy back when being crazy really meant something. (Charles Manson)
"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 do not think it means what you think it means.
/. crowd to grasp, but perhaps this example will help:
There's prior art--big whoop. That, and five bucks, will get you a cup of coffee at Starbucks.
Prior art isn't some silver bullet that will lay waste to any patent. Prior art is just that: any work existing prior to the work included in the patent relating to the art of the work included in the patent.
The existence of prior art does not automatically invalidate the patent. I don't think I'm going too far out on a limb to say, if it is not the case that all patents include prior art, then it certainly true of 99%+.
For example, I've invented an internal combustion engine which utilizes an innovative, non-obvious process to enable me to build a car which gets 100 miles to a gallon of extra virgin olive oil. However my process only works with oil produced by a specific method. In fact, it only works with oil from a special method that has been patented.
That special, patented olive-oil-producing method is prior art for my invention and would be included in my patent application, but has no bearing on whether my work is patent-worthy or not.
And let's say the implementation of my new engine is in a car with a specific type of existing transmission. That also would be prior art. And that also would have no bearing on the validity of any patent granted for my work.
I don't know why the concept of prior art is so hard for the
Is every computer program the intellectual property of the creator of the language used to write the program? You can't write the program without the language--it's prior art. If you were documenting a program, you'd certainly include some reference to the programming language used--it's prior art.
But you could certainly devise some innovative, non-obvious implementation of that language that would allow you to say, "this is my program."
In the course of human history, the people who have risen to power and want the government to be active in public life are almost always greedy, power-hungry, very easily corrupted people. I'm sick of the idealists who believe that we're going to change that. If you can't change basic facts about social organization, including the propensity to corruption in government and law, in the past 5,000 years, you can't change it in the next 5,000 years.
Abolish every aspect of law and government that isn't strictly needed to keep people from killing each other or others from invading if you want a government that might actually be run by people who will say to Microsoft, Apple, IBM, etc. "not my job to promote your business." The very reason that we have fights over things like software patents is that the federal government got so powerful that there was major influence to peddle. Get rid of the power, you get rid of a significant avenue by which corporations can legally shaft you.
Corporations are created by law. We could easily get rid of corporate abuse of power by getting rid of the laws that create corporations. The resulting depression should be enough to explain why laws were passed to create corporations.
The only way found in the long sad course of human history of limiting the damage from greedy, power-hungry and corrupt people is to spread power out, to limit it. Now if we the people decided to restrict government as you propose, but leave corporate power alone, then the center of power would shift to corporate hands. Power-hungry, greedy and easily corruptible would seek corporate office as they do today. Or did you notice the stock option backdating? What would limit their power? Not fair competition, as that is currently enforced by anti trust law. Not accounting standards, as these are also currently enforced by law. What would set the limits of corporate power if not government?
There are many examples of "natural monopoly". The oldest is irrigation water. The owner of a natural monopoly has power by right of ownership of the monopoly. Question to libertarians: how can the power of natural monopolies be limited?
And think about this: Suppose you went into a time warp and found out that 100 years from now the governments of the world were limited what was "strictly needed to keep people from killing each other or others from invading", but that MegaSoftXP owned the Internet, world wide. To connect to the Internet you needed to buy a computer with a HexiumXP processor running Doors4XP, all MegaSoftXP products. MegaSoftXP selected judges, required that governments pass specific laws, owned most real estate, electric power, water, railroads, roads, buildings, houses, farms, mines, airlines, and controlled most media other than a crazy guy trying to pass out papers on the street corner until MegaSoftXP security arrested him for trespassing and littering. Governments might be limited, but MegaSoftXP isn't. Compete with MegaSoftXP? Exactly how?
--- sig? what is a sig? --
There are plenty of big dumb companies who will be happy to license your ability to use and improve free software. M$ and IBM and other companies pushing for software patents will be happy to claim ownership of everyones' hard work. That's what this is really about, isn't it?
Friends don't help friends install M$ junk.
Americans CLAIM to love freedom. But we really love convenience. We pay lip service to wanting lots of choices, but so long as the few choices we have are accessible and provide immediate gratification, why should we care about some other clunky alternatives that we don't have?
So Microsoft spies on us while we use windows. So what? I don't actually notice. It doesn't inconvenience me in any direct way. And windows works the way I expect it to. I don't have to learn nearly as much as I do in order to use Linux, and all my games play on it out of the box. Oh, and I don't even have to install it...it comes on my computer. Convenience all around, so that's where my money winds up going.
The list of candidates to vote on is usually kept quite small. Sure, the two party system eliminates options, and our method of voter tallying is statistically absurd, but it is so darn CONVIENANT. For most of us, there is an obvious choice...the party choice. I don't have to bother listening to platforms or researching relevant issues...I just vote for my party and suddenly I am a good patriot with a license to complain. Isn't convenience wonderful?
Sure airport searches are a bit inconvenient if I am the one who gets searched...but the odds are low. Usually its some other guy who gets searched, and that makes me feel safer. Maybe they record and traffic my personal information, but I don't really feel any sting for that (for the most part, I don't even know its going on). I can fly anywhere and feel like my interests are safely guarded by the government. The convenience of this feeling far outweighs the minor inconveniences of the occasional long wait to get in the airplane.
So I can't copy DVD's. Oh well, I guess I will just pay them again. An extra fifteen bucks won't kill me. Breaking the law and risking punishment just so I can make personal backups is just a bit too inconvenient. Region encoding? What's that? I've never felt it's sting, because I buy my DVD's at Wall mart...not from some weird store way out in Europe...the shipping time alone is just too much, not to mention the extra cost. What I have got is convenient enough, and the added convenience you geeks talk about seems a little superfluous and way too much work to obtain. Nah, I like things the way they are.
So what if my cell phone calls are monitored and my position is tracked? So what if the providers are overcharging a bit because they can get away with it? Cell phones are an exemplar of convenience. So what if my internet usage is tracked and recorded? All they would ever do is prevent me from breaking the law anyway, right? That's ok with me. So long as the only people who get their rights abused by all this monitoring and information-tracking are a few social rabble-rousers, and not me, there really is no problem. I like all this convenience much better than the pains of actually making myself aware of what's going on and making sacrifices to ensure my continued privacy and freedom.
Power is a lot of work to keep hold of. Far too inconvenient. Let the politicians and big corporations fight over it. I am better off without any of it at all. Good riddance.
And God bless America!
Just days before the European Commission's next hearing on patent policy that is still being hatched despite the last directive's overwhelming defeat in Parliament, several recent publications discuss developments of the law on Tux' home continent, and successful steps to avert software patents: The huge new book on "The War over Software Patents in the European Union" by the founder of NoSoftwarePatents has just been released for download. If you prefer a few hundred pages less, see the latest issue of the International Journal of Law and Information Technology for a scholarly article.
This is sort of like saying that rhinos and pandas can't become extinct because we have been trying to eradicate rats for centuries, and they are doing well.
"-1 Troll" is the apparently the same as "-1 I disagree with you."
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
Indeed, some of the patents in the patent commons can be withdrawn at any time. It seems to be a half-hearted effort. Why? Look at the companies on OSDL's board. They are the ones that most profit from software patenting.
If you want to understand the truth about the patent commons, start at LWN's coverage of their disclosures.
There is another project called Open Innovation Network, started by Novell, that is supposed to contain patents that really are dedicated for defensive use.
Bruce
Bruce Perens.
In 1997 the following paper was presented at the 6th International Python Conference: "Persistent Storage of Python Objects in Relational Databases" by Joel Shprentz (http://www.python.org/workshops/1997-10/proceedin gs/shprentz.html)
This paper describes exactly what the Firestar patent claims to invent. Appears that the patent office is: A) Lazy, B) un-informed, C) unable to keep up with the imense amount of discovery that is going on, and/or D) an out of touch wreck that is going to destroy inovation in the civilized world.
I am a small software developer that was recently forced to abandon a very promising project that I spent 2 years on. This, brought about by a patent troll in NY city. I could not afford the $Millions they wanted or the cost of defending myself against an absurd patent that they bought from the ashes of a bankrupt company. My attorney sugested that I just let it go and not bring my product to market. Oh yes! The patent office is promoting inovation left and right.......in the field of creative litigation.
Perhaps, instead of changing the patent office, we should elect people to office that can change the court system in this country to force the people who file un-warrented law suits to pay the legal costs of the defendants, should the suit be shown to be without merit.