SFLC Argues On Same Side As Microsoft

MCRocker writes in with news that, while a few weeks old, didn't get a lot of traction before the holidays. The Software Freedom Law Center is one of the staunchest defenders of FOSS out there. The SFLC is arguing on the same side as Microsoft in a patent case before the Supreme Court. The case, "Microsoft vs. AT&T," turns on whether U.S. patents should apply to software that is copied and distributed overseas. Groklaw has more nitty-gritty details. In the Linux-Watch article, the SFLC's legal director, Daniel Ravicher, is quoted: "I expect many people will be surprised that the Software Freedom Law Center has filed a brief with the Supreme Court in support of Microsoft. In this specific case, Microsoft and SFLC are both supporting the position that U.S. software patents have no right to cover activity outside of the United States, especially in places that have specifically rejected software patents."

Comments

Amazing.

[splutty]

An F/OSS supporter that is actually honest enough to see that what their 'enemy' is doing is only beneficial for the whole. Kudos to them, I say. At least they know what they stand for (as is obvious from their name, really :) and don't blindly deny the possibilities that this case gives them.

*cheers*

Case is so important, Microsoft is irrelevant.

[Kadin2048]

Well in this case it's sort of a "duh" position to take. It doesn't matter if the appellant was Lucifer, Prince of Darkness, the SFLC couldn't possibly ignore this case. It's one of the only USSC cases currently in the system that get at the concept of software patents so directly.

Although Linux supporters sometimes see the software-patent issue as one part of the landscape affecting their favorite OS, I suspect to people working at the SFLC, the whole Linux/Windows conflict is just one very front (and at least at the moment, one on which there's not a whole lot of movement) in a much larger war.

Re:Case is so important, Microsoft is irrelevant.

[TheRaven64]

If they win this case, it could have a serious effect on software patents in the USA. Actually, whichever way the case goes could be good for the Free Software community. As I see it, there are two choices:

If US patents apply to activities of US corporations outside the US then this will mean that US companies are not able to compete as effectively in other markets. If it is possible for non-US software companies to undercut US-based ones in places like the EU and south-east Asia then this will have a serious effect on the US software industry. Anyone starting a software company will be likely to seriously consider starting it outside the US, even if they are from there. This will give a lot of weight to those campaigning to get software patents abolished in the USA, since they will be able to point to clear evidence that their existence is harming the economy. If this succeeds, then it will remove the 'aligning our IP laws with the US' argument that keeps being waved around by software patent proponents in the EU.

If the case goes the other way, then it means that those of us outside the USA will be able to get software products that are either better or cheaper (because they will either include code not found in the US versions, or because they will not include patent royalties) than those available in the USA. This can, again, be used as evidence of software patents harming the US economy.

Re:Case is so important, Microsoft is irrelevant.

[Adhemar]

Well in this case it's sort of a "duh" position to take.

Still, the SFLC takes a very different position compared to Microsoft, although technically on the same side. Microsoft argues that U.S. patents have no right to cover activity outside of the United States, especially in places that have specifically rejected software patents.

The SFLC argues that software patent are not valid at all under U.S. laws (specifically 35 U.S.C. 101) and prior Supreme Court decisions (Gottschalk v. Benson, 409 U.S. 63 (1972)). The Federal Circuit has repeatedly decided otherwise (In re Alappat, disregarding the Supreme Court's precedent as unclear); the Amicus Brief challenges this practice. (Go ahead and read the Brief, it's pretty readable even by non-lawyer standards.)

So although Microsoft and the SFLC are on the same side, I'm quite sure Microsoft would have preferred stating its case without this brief.

On the contrary, my dear

[thebackslasher]

I think the title of this item should have been "Microsoft agrees with the SFLC"! It is my understanding that the SFLC's position hasn't changed. It is just Microsoft's position which is surprising. What? Microsoft defending the rights of countries that do NOT support patents? I for one am surprised!

Re:On the contrary, my dear

[ShadowFalls]

Microsoft is looking at the big picture for themselves. With this type of implementation, they can implement products overseas with risk of being sued, taking and using the ideas of others to increase their own profit margin. Remember, Microsoft doesn't do it for the consumers, they do it because they think their bank account is getting short on funds.

This is the most important piece of the brief.

[codepunk]

"The brief also argues that the Federal Circuit's decisions declaring software to be patentable subject matter conflict with Supreme Court precedent, and thus should be overruled."

They argue in the brief that software as a whole is not patentable and the patenting of software conflicts with earlier supreme court rulings.

Re:the author

[kfg]

I have read articles wherein he crucifies Linux and another where he praises it. I am not sure exactly where his loyalties lie.

I'm not exactly sure why he should have any.

Let us assume, however, for the sake of argument, that he has some. Perhaps they are to ideas rather than to groups or "movements." I understand that to people not used to supporting ideas this can be confusing.

See the very subject of the article.

KFG

Re:Well, colour me confused

[Aim Here]

The law is 35 USC 271, section f, which is designed to stop people making components of a patented invention and shipping them overseas in order to be assembled into something that would breach the patent, had the act occured in the US.

In this case, the software is apparently developed in the US and shipped overseas.

Yes, it's a disgusting overreach of US patent law into foreign jurisdictions. And yes, software patents are evil, and hopefully unlawful. Go Eben and Dan!

Re:the author

[drsmithy]

I have read articles wherein he crucifies Linux and another where he praises it.

Possibly because there are some situations where Linux deserves praise and others where it deserves scathing criticism ?

Microsoft is not irrelevant this time

[msobkow]

In this specific case, Microsoft and SFLC are both supporting the position that U.S. software patents have no right to cover activity outside of the United States, especially in places that have specifically rejected software patents.

I don't even ascribe to that narrow restriction. Any patent or IP system should be national or managed by a trade union like the EU, not shoved down the throats of foreign citizens and businesses by one country. The current approach allows patent holders to literally leverage the military and economic pressures of the United States for their own personal gain.

Having the OSS symbol of evil (Microsoft) standing alongside the pro-OSS representatives on this issue highlights the broken nature of the current US patent system in double-height, double-width, bold, italic, flashing, underlined text.

Earlier Poster got it right

[ajs318]

I think the earlier poster got it right in saying that it would really be truer to say that it's Microsoft who are fighting on the same side as the SFLC.

Nevertheless, there is such a thing as "National Sovereignty"; which basically means that a nation's laws stop at that nation's borders. If Person A does something which is legal in Nation X but not in Nation Y, and does it in Nation X, then Nation Y has no redress against Person A. The consumption of alcohol and extra-marital sex are both illegal in Saudi Arabia; however, any Saudi resident who drinks several litres of Guinness while visiting Ireland is not committing any crime for which they can be punished under Saudi law. That's because the Republic of Ireland is a sovereign nation. Only Irish Law applies to acts performed in the Republic of Ireland, whether or not they be done by Irish citizens. If the Arab in question then visited certain parts of the Continent, he might even be permitted to engage in lawful (subject to payment of the appropriate taxes) sex with a prostitute, and possibly even (again legally) to consume certain other substances less harmful than alcohol. Again, local (not Saudi) law would be applicable.

So it seems to me that if a US-owned company were to create software in some non-US territory which might violate US patents if it were imported into the USA but (by dint of the scope of patentability) would not violate any patents in the territory where it were created, the laws of the territory where the software were created would be applicable. And for the USA to seek to prevent a perfectly legal act within the borders of another sovereign nation could be construed as an Act of War.

Good idea, but unlikely to work

[aegl]

So this was a great idea by SFLC to remind the Supreme Court that the larger issue of whether software should be allowed to be patented at all, but it is a very long shot. Chief Justice Roberts is on record as saying that he prefers to keep rulings as narrow as possible:

"If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more."

See more of his philosophy at http://www.economist.com/PrinterFriendly.cfm?story _id=8413080

So, while it would be nice to see the Supreme Court invalidate software patents, I wouldn't hold my breath waiting for them to do so.

Re:Well, colour me confused

[Aim Here]

Yeah, but if SCOTUS rules that patents aren't valid relative to section 271(f) because they're not valid at all, then there's no reason for that reasoning not to be applicable.

In fact, my uninformed guess is that it would be perverse for software to not be a component under 271(f) while being fully patentable under 101. The law so far has ruled diametrically opposite. The Eolas case, the one Supreme Court ruling (sortof) in favour of software patents, allowed for a computer running software to be part of a larger industrial process (and that is the foothold that was exploited by subsequent district courts to effectively legalise software patents without any congressional input). Software can be a component of a patentable invention, if not the invention itself. However, in this particular case, I have a sneaking recollection that the full invention that AT&T wants to patent is nothing but software, which works in favour of the SFLC again.

I don't know how it'll go, but it would be a brilliant legal move for the SFLC to abolish software patents with this drive-by hit on a passing lawsuit, though. It costs us nothing and might win us everything, so it's definitely worth a try.