Red Hat Makes a GPL-Compatible Patent Deal

Bruce Perens writes "Red Hat has settled patent suits with Firestar Software, Inc., Amphion, and Datatern on a patent covering the Object-Relational Database Model, which those companies asserted was used in the jBoss Hibernate package — not in Red Hat Linux. The settlement is said to protect upstream developers and derivative works of the upstream software, thus protecting the overall Open Source community. Full terms of the settlement and patent licenses are not available at this time." Reader Koohoolinn adds a link to RedHat's own report of the settlement and adds that the deal "is GPLv2 and even GPLv3-compatible." Koohoolinn also points out commentary on Groklaw that this deal "means that those who claim the GPL isolates itself from standards bodies' IP pledges are wrong. It is possible to come up with language that satisfies the GPL and still acknowledges patents, and this is the proof. That means Microsoft could do it for OOXML if it wanted to. So who is isolating whom?"

Comments

Good for them

[chunk08]

Red Hat is the best thing for the open source community in terms of patents.

Re:Good for them

[cp.tar]

Red Hat is the best thing for the open source community in terms of patents.

If I understand this rightly, this is a veritable gift to the Open Source community. Kudos.

Thank you RedHat

[pembo13]

Not sure why there is even a patent on this, but making a deal which protects everyone is pretty nice.

Re:Thank you RedHat

[TheRealMindChild]

The point being, someone else can't patent it, then sue the pants off of everyone that used it.

Sure this protects anyone other than Red Hat, Inc?

[xxxJonBoyxxx]

Are you sure this protects anyone other than Red Hat, Inc.?

"The settlement is said to protect upstream developers and derivative works of the upstream software, thus protecting the overall Open Source community. Full terms of the settlement and patent licenses are not available at this time."

In other words..."trust us, you little people wouldn't understand the details?"

Not hard

[BlueParrot]

License the patent to all software that is licensed under GPLv2 or latter, problem solved. The GPLv3 doesn't actually ban you from patenting anything, it just says that if you implement those patents in a GPLv3 covered work, you must grant downstream developers the right to implement those patents in their modified versions of the software. Similarly the paragraph which demands you do not sign certain types of patent deals only applies to deals which gives protection to only a subset of the receivers of derivative works. Nothing stops you from making such a deal which provides a license to anybody who uses a GPL compatible license for works that implement it.

Re:Not hard

[mapsjanhere]

The issue is that such a license can badly backfire if it deals with software, since software is so nicely reusable.
Using so all so popular car allegory, lets say I make trucks, and I have a patent for a new suspension. Now, since I'm not interested in cars, I license the patent to car makers under GPL. And gosh, some clever truck manufacturer will find a way to claim the design out of a GPLed car to fit into his truck, and point to my GPLed patent.
So, is the truck axle a protected "derivative work" of the GPLed product or a clear violation of the patent? This will probably not be defined in this context other then by the courts.
Until the details of this deal are known I think its too early to call the patent-GPLv3 issue solved.

Re:Not hard

[cduffy]

Folks making proprietary use typically won't want to be subject to the GPL -- so they'll need to get a patent license, because they're certainly not covered. That limits the extent to which this patent can be reused, and thus to which having offered it can backfire on the licensor.

(That said, Red Hat was prepared to shoot them down hard if they didn't agree to settle -- lots of prior art dug up).

Re:Not hard

[BlueParrot]

And gosh, some clever truck manufacturer will find a way to claim the design out of a GPLed car to fit into his truck,

Yes, that is the idea, IT IS PRECISELY THE IDEA. The GPL is not intended to let you limit your software patents to only some subset of all GPL software. It is intended to keep GPL software, any GPL software, safe from patent threats. Thus if the truck manufacturer licenses his trucks under the GPL, he will be allowed to use the patent that covered the car. This is not a flaw, IT IS WORKING AS INTENDED. To be safe from the patent he will have to put the truck under the GPL, which means he will be forced to give the operating manual and blueprints of the truck to anybody who buys it from him. Thus either he will be blocked from implementing the patent, or the community gains information about how to build trucks. This is only a problem if your goal was to use some GPL code that implements your patent (i.e the cars ) while simultaneously threatening OTHER GPL products which implement your patents (i.e the trucks). The GPL seeks to prevent you from doing this. Thus while you have given a very good example of how the GPL achieves this, you incorrectly described it as a problem when it is in fact the very point of the GPL.

Re:Not hard

[mapsjanhere]

Sure, in your case that's how the GPL is intended. In my case the truck manufacturer has no intention to license his truck patent under the GPL for use in trucks. He is trying to license it for the use in cars under the GPL. Then someone is taking the car part to break the truck patent.
In software terms, as an engineer I might have a patent on a method to model the aging of engineered structures. Now some academic approaches me to use my program to look at erosion in Triassic fossil fields. Not seeing a conflict or commercial value, I give him a little GPLed program for his application. Now some other engineer modifies that code to compete in my field, claiming GPL protection from my patent since it's "derivative work" of a piece of GPL code.
This is not about me using GPL code and not passing it on, it's about me potentially NOT being able to give the code away fearing for my legitimate patent (which protects my work in a specialized application, not something a patent troll has coughed up to sue).

Re:Not hard

[bobsledbob]

If you choose to release your work under the GPLv3, then you are obligated not to sue the downstream "other engineer" for patent infringement, because his code is a derivative work.

But, this doesn't exclude him from having to follow the requirements of the GPL as well. Meaning, because he is a derivative work, his code is now "infected" and upon distribution, he too will have to provide the source code to his product as well.

In essence, he is bound to release his product as GPLv3, and because of this, he is also not able to sue anyone downstream. He is, in fact, now unable to defend his patent as he's waived the rights to suing by including your original work.

So, call this a competitive stale-mate if you will. You can't sue him, but he can't release something proprietary based on your original work. This is the way it's supposed to work.

Legitimacy?

[XanC]

Does a deal like this lend legitimacy to a ridiculous patent, thus encouraging more patent trolling? Would ignoring them have been better? Maybe this patent is actually meaningful, but I doubt it.

Re:Legitimacy?

[chunk08]

I just read through part of Red Hat's release, and they seem to claim that they did not admit to infringement. So, it is possible that Firestar and Datatern were afraid of a countersuit as it became clear that they had little standing, and Red Hat decided to settle to quickly get the terms they wanted.

Re:Legitimacy?

[Rhapsody Scarlet]

The GPLv3 itself gives software patents (more than a few of which are ridiculous) a level of legitimacy, by implying that they are a threat to free software and aren't going anywhere any time soon. As much as I'd like to, we can't just ignore patent trolls. They have to be dealt with in some manner, whether that's by challenging the patent or by paying them enough to get acceptable licensing terms.

If you really want to solve the problem once and for all, there's only one way to do it. Get the patent system reformed so it's more difficult to make such patents. The only way that's going to start is with grassroots action, so get to it.

Re:Legitimacy?

[jlarocco]

Here. You make it sound like patents are a big secret or something.

NeXT EOF?

[chochos]

I guess Apple could have just jumped in and showed prior art with the Enterprise Objects Framework they got from NeXT; it's the oldest ORM I've seen (and used). Version 1.0 came out in 1994. They ported it to Java when they ported WebObjects in 2001. Cayenne is an open source implementation very similar to the original. Surely Apple has some patents on those stuff, or they could have just showed prior art, I mean, how old are the patents from these companies that RedHat paid off?

Re:NeXT EOF?

[Miseph]

Didn't you get the memo, Apple are so nice and fair that they would always happily lend a hand to other large corporations with or without any kind of motive or incentive. They'd also never engage in vendor lock in, or support DRM to keep software from being used in unapproved ways or on unapproved hardware.

This is just common knowledge.

Re:Sure this protects anyone other than Red Hat, I

[mhall119]

In other words the settlement details are rarely every made public in these kinds of situations. What they have announced is that the settlement grants a royalty-free patent license to all upstream and downstream developers, distributors and users.

Re:Sure this protects anyone other than Red Hat, I

[eparis]

Obviously I am not a lawyer but the way I read it many people other than Red Hat are protected, but not quite all. If you develop your own project completely from scratch and you are violating this patent (which may or may not be dubious, RH never admitted to violating it or that it was legit) you are on your own. The licence of your wholely new and unrelated project is irrelevant. If you go and get your project accepted into Fedora (pretty easy task) you are then covered since Fedora is a RH brand. Now your upstream code from the Fedora project (and any predecessor code created before you got accepted into Fedora) is now covered by this licence so other distros or projects can take your work use, modify, and distribute it just like any GPL code and are legal. It seems from my reading of all the press over the last 2 days and the RH FAQs like the only condition that needs to be met is that code which makes use of this 'patent' exist in a Red Hat brand. If it exists, existed, or will exist, in Fedora everybody is covered. This is a great thing for RH to do to support all of us who use a RH supported distro or some other distro.

upstream developers are covered ..

[rs232]

"Are you sure this protects anyone other than Red Hat, Inc.?"

"Upstream developers receive a perpetual, fully paid-up, royalty-free, irrevocable worldwide license to the patents in suit"

"All products distributed under a Red Hat brand are covered .. In addition, derivative works .. are protected"

Good for Linux, bad for OSS

[Klync]

While this deal might be good news for RH and anyone up/down stream using the code base, I fear it's counter to the spirit of the F/OSS movement. Yes, I'm actually one of those people who thinks RMS and the GNU Manifesto make sense and raise important considerations. The problem is this: as an intermediate coder (I'm a sysadmin, not a programmer, fwiw), I will now hesitate to look at the source of some "open source" code for ideas and methods. If I do, I might cherry-pick a method which is encumbered, even though its implementation is open. Will the GPL eventually be as useful as MSFT's "shared source" license? I hope not.

Re:Good for Linux, bad for OSS

[setagllib]

At least the GPLv3 protects you in this case. If I remember correctly, by distributing to you a GPLv3 implementation of their patent, a company explicitly protects you from suits based on that patent. GPLv3 has guys like you in mind. That's why it's an even more aggressive little-guy protector than GPLv2.

Re:This is SO EXCITING !!

[lahvak]

Is the son going to be GPL'd? In other words, can I reuse half of his genetic information to produce my own version? Will you provide an access to the source?

Re:This is SO EXCITING !!

[dmbasso]

be careful, you didn't specify which half you want... ;)

Re:Sure this protects anyone other than Red Hat, I

[Rolman]

Read carefully:

"The settlement is said to protect upstream developers and derivative works of the upstream software". It means that any implementation of the same code will be protected by this deal, whether is made by Red Hat or not.

That also means it'd be quite the same for you to say about the kernel: "Trust Torvalds, Molnar, Cox and many others, you little people wouldn't understand the kernel internals' details".

How much did this freedom cost?

[theendlessnow]

I now that Red Hat is shooting for GPL high fives... but normally when a company settles, there's money involved. Did this Red Hat settlement result in money being paid to GET the community off the hook? Isn't that patent blood money as well? Just curious.

Gift?

[Bruce Perens]

This would be a gift if Red Hat didn't get value from that community. But since they do, I think the best way to describe it is that Red Hat is sharing the way the community would like more companies to share.

Re:Gift?

[cp.tar]

Since the GPL was considered to be incompatible with patents, I'd say this was more than simple sharing.

Several companies have shared their patents with the Open Source community -- or at least promised never to sue for infringement (yes, I know there is a difference), but nobody has ever done that with someone else's patent.
This alone makes it a gift; showing that it is possible is another gift, as now we can expect more of the same.

Re:Gift?

[Bruce Perens]

Since the GPL was considered to be incompatible with patents, I'd say this was more than simple sharing.

That was FUD, though. The GPL wants some of your patent rights, just enough to protect GPL software from patents. You still have lots of room to license them commercially.

We can certainly call this an achievement. But really, this sort of legal innovation is what any company that wants to be a sincere partner in the Open Source community to the extent Red Hat is would be expected to do. We're not upset with Novell because they "didn't give us a gift". We're upset with them because they didn't do what is expected of anyone in their position. Red Hat just made that especially clear.

Re:This is SO EXCITING !!

[Bruce Perens]

Dear Son,

It's time you paid the royalties you owe on my DNA. After all, you're running half of it in each and every one of your cells, clearly an unlicensed derivative work. And don't you dare "make it available" without a license!

Dad

:-)

Validity of the patent or lack thereof

[Bruce Perens]

Yeah, it would have been better for everyone but Red Hat if they let the case drag out until they won. Because there's lots of prior art on the patent. But then again, anyone can see that the plaintiffs paid big time by giving up that many rights, and it doesn't sound like they got much from Red Hat to do that, but settled before they were counter-sued. So, hopefully people will be less willing to go after deep-pockets Open Source companies because of this.

Bruce

Re:Validity of the patent or lack thereof

[Raenex]

So they got paid off on a bogus patent, and you think this will discourage others in the future from suing?

Re:This is SO EXCITING !!

[lahvak]

Dear Dad,

Make sure you won't end up like SCO.

Son.

Re:This is SO EXCITING !!

[Anonymous Coward]

Dear "Dad",

Close analysis seems to suggest that your claim to your genome is unlikely to be enforceable to any usable degree. Over 96% of your genome also appears in the genome of chimpanzees, raising the question of the basic validity of your claim in view of the vast range of prior art appearing in the field. In addition, the behavior expressed in the implementation of the genome is almost totally modeled on the behavior of prior implementations; for instance, the behavior of using a stick to probe for termites is a clear precursor to using a lawyer to probe for monetizable intangibles.

In addition, the source of the other DNA used to develop me points out that it is self-evident that your DNA could not have been used in my development, if only because she characterized yours as belonging to a "knuckle-dragging ape" as opposed to that provided by the engineering grad student she gave her virginity to when you were passed out on beer at Homecoming.

In short, I would refer your counsel to Arkell v. Pressdram in the British courts.

Sincerely not-all-that-much-yours,

Son

Re:This is SO EXCITING !!

[gstoddart]

Dear Son,
It's time you paid the royalties you owe on my DNA. After all, you're running half of it in each and every one of your cells, clearly an unlicensed derivative work. And don't you dare "make it available" without a license!

Dad :-)

Dear Dad,

As your 'property' was provided freely in collaboration with Mom with no stipulated conditions at time of release, my DNA can be considered to be the results of a legitimate collaborative effort and a voluntary submission. Therefore, it is presumptive that a co-licensing agreement was implicit at time of production.

While I will refrain from directly competing with you in this market place, I do reserve the right to produce a limited amount of derivative works, and long as I do not use it for commercial purposes.

Also, I will be making it available for limited distribution for experimental purposes to the first girl willing to have it. However, I will make efforts to ensure that no further copies are created.

Son.