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Maybe Software Patents Won't Kill FOSS After All

timothy posted more than 10 years ago | from the hurdles-and-hoops dept.

Patents 305

Roblimo writes "Lawrence Rosen, attorney for the Open Source Initiative, doesn't seem to be as worried about software patents' effects on open source development as some Slashdot readers. In this article he says, 'Don't be too paranoid about the patent problem. It's a real problem, but not a catastrophe. Any patent owner that tries to assert its patents against open source software has many hurdles to leap before the royalty checks start to arrive.'"

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But they will allow (-1, Troll)

Anonymous Coward | more than 10 years ago | (#9807368)

all of you to suck on my COCK.

- The Giver

Re:But they will allow (-1)

Anonymous Coward | more than 10 years ago | (#9807373)

Damn, and I was about to apply for a patent on FP... this is a real problem!

Re:But they will allow (0)

Anonymous Coward | more than 10 years ago | (#9807439)

I already did the patent will be mine! BTW Grandparent owes me 0.50 cents

Re:But they will allow (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#9807447)

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--
dont USE so maney capps, its like yalla.
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dont USE so maney capps, its like yalla.

It's not about the royalty checks (5, Insightful)

One Louder (595430) | more than 10 years ago | (#9807378)

When the Great Patent War commences next year, it won't be about getting checks - it will be about scaring people away from Open Source solutions to problems previously solved by proprietary products. The companies that will asserting the patents don't need and don't want the money - they want the products dead and customers scared off.

Re:It's not about the royalty checks (4, Insightful)

gcaseye6677 (694805) | more than 10 years ago | (#9807420)

Sadly, I think you're right. Just look at what SCO has been doing. I don't even think they were stupid enough to believe that every Linux user would write them a check. Surely someone told Darl that any infringing code could be replaced. They were just spreading FUD for their sponsor (MS) who was paying the bills that would allow them to run their stock scam. At this point, it seems likely that Microsoft, who has the most to lose from open source, will find another SCO-like partner to use as a FUD agent. And this one probably won't be so incompetent.

Re:It's not about the royalty checks (2, Insightful)

Pieroxy (222434) | more than 10 years ago | (#9807755)

Microsoft, who has the most to lose from open source

It seems to me that Sun already lost (almost) all of its assets to Linux.

Microsoft isn't the only player, even if it's a big one.

Re:It's not about the royalty checks (0)

Anonymous Coward | more than 10 years ago | (#9807422)

my advice - RTFA

Re:It's not about the royalty checks (4, Insightful)

pongo000 (97357) | more than 10 years ago | (#9807508)

What recourse does a company asserting a patent have against an end user? The end user isn't violating the patent in question -- the alleged violation was committed by the creator of the work. I simply don't see how patents can be used to "scare people away from Open Source solutions."

Re:It's not about the royalty checks (4, Interesting)

einer (459199) | more than 10 years ago | (#9807598)

I agree that it has nothing to do with the end user.

At my previous place of employment, management was scared away from Open Source Software. We had a "consultant" audit our shop. Apparently, Samba has the potential to create "future legal headaches." The SCO debacle was also brought up and used to scare management into purging open source software from every server and workstation. "Future interoperability concerns" were cited as well, since the world stops spinning without Microsoft, and Microsoft doesn't endorse our practice of using OSS.

I didn't find any actual out and out lies in the review. It's true that in the future, there is a potential for "legal headaches." It's not likely, and I imagine I'm probably more likely to be struck by lightning, while being eaten by a shark, while also holding the winning Powerball ticket.

Clearly, this is an example of terminal rectal-cranial-inversion, but I doubt it's an isolated case. Suits listen to suits, not to programmers.

It's not patents per se, but the uncertain (by whose standards I couldn't say) legal water that OSS exists in. The danger exists in the fostering of legal uncertainty.

Re:It's not about the royalty checks (4, Informative)

hgolden (26353) | more than 10 years ago | (#9807693)

pongo, patents allow the patent holder to prevent the end user from using the patented invention. It is a violation to use a patented invention without a license from the patent holder.

Note that this is different from how copyrights work. Once you have a copy of a copyrighted work, you have (at least in the United States) certain "fair use" rights.

So, in theory at least, a patent holder can sue an end user to prevent him/her from using the patented invention without a license, and the patent holder can obtain an injunction from a court to forbid use of the patented invention by an unlicensed end user.

Re:It's not about the royalty checks (1, Informative)

Anonymous Coward | more than 10 years ago | (#9807876)

Well, perhaps not the "end user", but the "customer" of the software is at risk. But note that using proprietary software doesn't help you in this regard. In the bottom of The Fine Article is a very interesting comment of Cognos getting nailed for almost two million dollars just because Microsoft infringed on some patents.
Don't assume that you are safer using Microsoft (Score:2)
By NZheretic (504) <{heretic} {at} {ihug.co.nz}> on 2004.07.26 9:55 (#96153)
Developers and users of proprietary software also face a similar risk from the patent threat.

An example of this is Microsoft's licensing of patented technology for only itself without granting the right for end users and developers to use the same patented technology. Microsoft licensed Database/Datawarehouse technology from Timeline Inc, but unlike Oracle and other database vendors, Microsoft chose a license that did not grant Microsoft's customers the right to fully use that technology [theregister.co.uk]. Timeline has extended it's patent claims to cover many featured widely used by developers [winnetmag.com], both ISV and in house.

Timeline Inc has won a US Washington Court of Appeal judgment against Microsoft [tmln.com] for the right to sue Microsoft's customers, and subsequently sued Cognos. On February 13, 2004, Cognos settled at cost to Cognos totaling $1.75 million [timeline.com].

In a lot of ways you are better with GPL licensed techology [newsforge.com], which effectively grants all downstream users the right to use the patents from upstream developers under the terms of the GPL [gnu.org].

Software Patent are bad but are also pushing interesting trend
At least with open source you could look into what you're getting into. With proprietary software you never can be sure.

Re:It's not about the royalty checks (5, Insightful)

oogoliegoogolie (635356) | more than 10 years ago | (#9807597)

That is a possibility, but it could as easily backfire for the company initiating the litigation. SCO certainly hasn't stopped linux adoption.

Companies when confronted with alleged patent violations often roll over and pay up. For them it is a business decision. Pay $x million now for the right to use the technology, or pay $x million + $y million for laywers if they fight and lose. Sometimes it's better to pay $x and be done with it than pay $x+$y.

Open source is a different story. When open source gets attacked it's as like when a bear tries to get into the beehive-it's personal! The opensource bees get riled up and come out to protect the open source honey.

One bee against a bear in no match, but thousands will eventually come out, attack, and drive off the bear. If the bear gets stung too many times, it leaves the bees alone and wanders off to look for something else. The bees are smarter, more alert, and more wary, and notice sooner when a bear approaches. They know the bear wants their honey and work harder to protect it.

Now the bear thinks twice about trying to get the open source honey. Other bears that heard what happened stay away from the honey because they know how bad the first bear got stung and realize it isn't worth it. And all other creatures who know nothing about the open source honey hear of this bear and think of the bear as foolish, deparate, and a big bully and want nothing to do with the bear.

Re:It's not about the royalty checks (0)

Anonymous Coward | more than 10 years ago | (#9807660)

"One bee against a bear in no match, but thousands will eventually come out, attack, and drive off the bear. If the bear gets stung too many times, it leaves the bees alone and wanders off to look for something else. The bees are smarter, more alert, and more wary, and notice sooner when a bear approaches. They know the bear wants their honey and work harder to protect it."

Most bears are immune to bee stings and even electricity. Their coats protect them from both. Sorry but your analogy is either right on and it is hopeless or perhaps your approach to the analogy is flawed. Perhaps you meant to tackle the bears like we do in the real world. One sets up cheap electric fences and baits them with honey and meat. The bears can just break through the cheap fences but they instead lick and smell getting shocked. Now that you know how one actually goes about detering a bear, care to fix your strategy?

pingmeep

Re:It's not about the royalty checks (0)

Anonymous Coward | more than 10 years ago | (#9807679)

That is such a stupid analogy I don't know where to start.

It's about shutting down small projects too (1)

EmbeddedJanitor (597831) | more than 10 years ago | (#9807806)

The parent is right. It isn't about the royalty checks. It's about the threat to both the development and uptake of OSS.

Who wants to work on a project that, if it looks successful is going to end up being beaten up and shut down by the patent holder. Since OSS has no revenue stream, even a small royalty can kill it.

Big biz backers of OSS (IBM, Novell,...) could perceive a threat of big royalties or civil cases if they assist OSS projects. For example, the patent owners could make a case that apart from direct infringement, by assisting OSS IBM and others could be charged with assisting others to violate patents. In short, could get messy.

Re:It's not about the royalty checks (1)

Tony-A (29931) | more than 10 years ago | (#9807863)

they want the products dead and customers scared off.

Kinda like a county whose county seat scared off the railroads when the railroads were expanding across the American west.

This isn't about shooting yourself in the foot. It's about cutting off the industry's air supply. To whose benefit?

OMG! (5, Funny)

NaCh0 (6124) | more than 10 years ago | (#9807379)

A voice of sanity on slashdot. I knew it was a slow day.

Re:OMG! (0)

Anonymous Coward | more than 10 years ago | (#9807436)

Whoever modded that insightful really has a slow day...

Hey mods, hear here: "I agree with the article". Can I be modded up too now?

Re:OMG! (1)

bri_n33 (665143) | more than 10 years ago | (#9807674)

"Don't be too paranoid about the patent problem"

What? Paranoid Slashdot readers? Never!
Where's my tinfoil hat....

Re:OMG! (1)

pod (1103) | more than 10 years ago | (#9807807)

Well, some of the fear comes from unfamiliarity with the legal system. There's the general idea that anyone can sue anyone for any reason, and that IS largely true in the US. I don't know, I think all it would take to send me into a heart attack is a single legalese letter, no matter how difficult it may be for the company to follow through. I'd just fold after seeing the bill from my lawyer for his first 10 hours, which, if the lawsuit has any merit, is easily achievable.

No money issue? (3, Insightful)

chrispyman (710460) | more than 10 years ago | (#9807383)

So the main reason it's not likely that an open source project will get sued is simply because they don't have any money. Unfortunately what would likely happen if they did sue is that it would cripple or kill that project. Fortunately I'd suspect that if some open source project had a big company (say Sun or IBM) backing it, I doubt this whole thing would be a problem.

Re:No money issue? (1)

Rosco P. Coltrane (209368) | more than 10 years ago | (#9807414)

So the main reason it's not likely that an open source project will get sued is simply because they don't have any money.

Don't tell it to Caldera^H^H^H^H^H^HSCO, they think they can make $5BN by suing IBM, RH and Novell over Linux.

Re:No money issue? (2, Informative)

Beryllium Sphere(tm) (193358) | more than 10 years ago | (#9807512)

>Fortunately I'd suspect that if some open source project had a big company (say Sun or IBM) backing it, I doubt this whole thing would be a problem.

But if IBM settles with $PLAINTIFF by a cross-licensing deal, independent developers are left out in the cold and $PLAINTIFF can still shut them down.

Royalties (4, Insightful)

phorm (591458) | more than 10 years ago | (#9807386)

Any patent owner that tries to assert its patents against open source software has many hurdles to leap before the royalty checks start to arrive.

Except much of the concern is not only paying out royalties, but being dragged through useless court proceeding after court proceeding by companies that find it much more to their benefit to drag OSS through the mud, and strike fear of legal action into the hearts of OS proponents.

There comes a point where it doesn't really matter if you win in court, particular if one hsa gone through a costly multi-year court battle just to be proclaimed "innocent" of any wrongdoing.

Slashdot comma regarding (-1, Troll)

Anonymous Coward | more than 10 years ago | (#9807387)

It's fucking awful now - I don't even come here much anymore and find that I give less than a fuck.

LESS THAN A SINGLE FUCK.

Props to all dead homiezz

HOT GRITS

How open source should deal with sofware patents (1, Funny)

Rosco P. Coltrane (209368) | more than 10 years ago | (#9807393)

killall -9 software_patents

Re:How open source should deal with sofware patent (0)

Anonymous Coward | more than 10 years ago | (#9807467)

Address the problem at its root:
killall -9 software_patent_holders

I'm afraid I can't assist, too many things to do.

Re:How open source should deal with sofware patent (0)

Anonymous Coward | more than 10 years ago | (#9807547)

why not the software patent registrars? software patent laws? software patent lawmakers? software patent lawmaker constituencies? YOU?

Re:How open source should deal with sofware patent (1)

BillyBlaze (746775) | more than 10 years ago | (#9807664)

In most cases, the large patent holders are busy bribing lawmakers to perpetuate the current system, so they do deserve a significant portion of the blame.

Re:How open source should deal with sofware patent (1)

the_mad_poster (640772) | more than 10 years ago | (#9807631)

The irony in using a command that started in the proprietary IRIX system to show "how open source should deal with software patents" is something I fear shall be forever lost on most Slashdotters...

its not the royalties (4, Insightful)

jrexilius (520067) | more than 10 years ago | (#9807406)

Its the fear factor to stop adoption (stop market loss not profit). I dont think MS wants royalties from OpenOffice, they want people to be too afraid to use it.

Re:its not the royalties (1)

Halfbaked Plan (769830) | more than 10 years ago | (#9807503)

Until OpenOffice matures a little more, people *should* be afraid to use it.

I can run Word 2000 and Excel 2000 on a 486-100 laptop with 32 megs of RAM.

OpenOffice KILLS the machine.

Hmm (0)

Anonymous Coward | more than 10 years ago | (#9807556)

Why would people be scared to use it?

Microsoft: Hey, I've got patents on all the stuff OpenOffice.org does, so you guys can't use it anymore!

Rest of the world: Put it where the sun don't shine Microsoft, we don't care.

Microsoft: Right. I'm gonna get ya! Hmm, who to target first... Wait, how am I supposed to target a whole community with a lawsuit? Ahhhhh *explodes*

And there was much rejoicing.

(Yayyyy)

Re:Hmm (0)

Anonymous Coward | more than 10 years ago | (#9807615)

Wait, how am I supposed to target a whole community with a lawsuit?

1) Sue Sun
2) Sue RedHat
3) Sue Novell
4) Finish decapitating the 'whole community'

(you know 4 and 5)

Is this an issue? (3, Interesting)

LivinFree (468341) | more than 10 years ago | (#9807407)

Excuse my ignorance, but is this really an issue?

If the OSS community comes up with an idea first, they can claim prior art, no? Otherwise, the idea (or implementation) rightfully belongs to the person or corporation that comes up with it.

Proving prior art is a major nusaince, but if it happens enough, will companies place their patents under more scrutiny rather than figting for something they'll likely lose?

--
http://acostas.org [acostas.org]

Re:Is this an issue? (1)

jrexilius (520067) | more than 10 years ago | (#9807441)

It depends on how loosely you term "an idea" and how likely the USPTO is to recognize the prior art. After a petent is awraded to a company, no matter how ridiculous (one-click purchase?), if an OS package comes along that emulates the same general idea people can be sued for using it. The company doesnt even need to win, just to scare and sue people to keep end-users locked in to their solution.

Re:Is this an issue? (1)

LivinFree (468341) | more than 10 years ago | (#9807491)

I see your point, but if there is no prior art on something as simple as One Click purchase, all anyone else can do is kick themselves for not coming up with the idea of patenting it.

In many cases, patents are stupid, but they're still necessary in the long run. Otherwise, anyone could copy your idea for a widget, and produce it at a cost less than yours - after all, they didn't have the R&D costs of developing a prototype of the idea.

Re:Is this an issue? (0)

Anonymous Coward | more than 10 years ago | (#9807533)

WTF? You, sir, are insane. INSANE. Let's see, um, nobody has yet used 18-click purchase, so I guess I can patent that, huh? And if anyone ever used it, I could sue them? And that would be reasonable WHY!!??

You aren't supposed to be able to patent obvious ideas. Even ideas no one has never implemented are often obvious. Even ideas that no one has ever happened to think of are often obvious.

Re:Is this an issue? (5, Insightful)

BillyBlaze (746775) | more than 10 years ago | (#9807612)

Otherwise, anyone could copy your idea for a widget, and produce it at a cost less than yours - after all, they didn't have the R&D costs of developing a prototype of the idea.

What's wrong with that? In the software industry, the implementation is what costs money.

Fig. 1: A button where, when you click it, you buy something.

+------+
| Buy! |
+------+

void button::onClick() { /* TODO: make it buy stuff */ }
See - it's took me 30 seconds to prototype that. The actual investment would have been filling in that comment. And if someone else can do that part cheaper, then let them - everyone gets cheaper widgets, and the company's real investment, the implementation, remains protected by copyright law. This also gives them an incentive to improve their implementation, whereas if they patented it, not only would they not need to improve it, they could keep others from improving it.

Re:Is this an issue? (2, Insightful)

LivinFree (468341) | more than 10 years ago | (#9807920)

Don't get me wrong - I do agree with you on most points, but it does ask the qeustion - "If this was so simple and straight-forward, why didn't someone else patent it?" I sure wish I had.

Both fortunately and unfortunately, we live in a more-or-less capitalist society. I am definitely a caplitalist, although I see the socialist side of this, in a capitalist kind of way. While I do oppose the idea of "patenting ideas" (maybe I should patent that), I do see the benefit of patents, even in software (like a poster below says, protect the implementation, not the idea.) I think it's fair to patent the One-Click, even though it doesn't benefit the community. But it's OK to benefit the first person with enough balls to patent something that the rest of us think is stupid.

I suppose I'm playing devil's advocate more than anything, but if I came up with an interesting new idea (and put the work into implementing it), I don't want someone to come in, undercut me (you can't argue with free), and make off with my idea as their own.

On the other hand, I benefit from free software (and other ideas / products) every day, and I'm grateful for that. I think it's great to innovate, and release for the common good (the microchip, case in point). The point of patents is not to stifle innovation, but to prevent unfair competition. Do you think that a single person, or group of people undercutting a product that was innovated by another person is fair? I don't. We all had our chance to do it first.

In the end, I still have mixed feelings about patents. They require a level of objectivity that's hard to find in a beaurocratic position. On one hand, they're necessary to protect yourself, and on the other hand, the details can cause true innovation to suffer.

--
http://acostas.org [acostas.org]

Re:Is this an issue? (1, Insightful)

Anonymous Coward | more than 10 years ago | (#9807466)

You know, the US patent system doesn't really care if you have prior art. It has been seen plenty of times, with all these ridiculous patents getting through. Or perhaps they do care, but with companies filing huge amounts of patents (if Microsoft alone files 10 patents a day) they quite possibly don't have the time or resources to check every one of them.

I believe it would actually be possible to patent breathing - or perhaps "a way to gather oxygen from the air by using organs located in the chest" - if somebody actually decided to try that..

Re:Is this an issue? (0)

Anonymous Coward | more than 10 years ago | (#9807487)

Proving prior art takes time and money. Both of which might be in very short supply for most OSS projects.

What would the odds have been if SCO had first gone after a small OSS project instead of IBM?

Re:Is this an issue? (5, Insightful)

BillyBlaze (746775) | more than 10 years ago | (#9807505)

The real problem is software patents protect the wrong thing. Ideas are worthless, but in software, the real investment is in implementation. And copyright is perfect for protecting software implementations. Besides that, having the exclusive right to an idea, and not just an implementation of it, works against the goals of having computers work together smoothly and having them be user friendly. If you can patent ideas, then the lock-in problem becomes insurmountable. If you can patent user interfaces, then there will be so many other interfaces to circumvent the patent that nobody will be able to figure out how to use the damn thing.

And as a seperate problem, no, you can't "just" claim prior art. You have to be dragged into court, comply with C&D letters for several months, and give huge amounts of money to lawyers. Individuals simply can't afford this - for any project smaller than Linux itself, the maintainers would likely give up for financial reasons. Our legal system is too bloated and ineffective to rely on it as a safety valve for the chilling effects of patents.

Re:Is this an issue? (1)

Beryllium Sphere(tm) (193358) | more than 10 years ago | (#9807544)

>And as a seperate problem, no, you can't "just" claim prior art.

Exactly. The article mentions that overturning a patent requires "clear and convincing" evidence. Good luck making something clear and convincing to a non-technical lawyer (the judge) while the plaintiff's lawyers work day and night to make it unclear and unconvincing.

Re:Is this an issue? (0)

QuantumG (50515) | more than 10 years ago | (#9807912)

Copyright is the best way to protect software? What planet are you living on?

Re:Is this an issue? (1, Insightful)

Anonymous Coward | more than 10 years ago | (#9807526)

The problem is, you might "invent" something as you write your code, but somebody already invented it and patented it.

Example: when I was a kid on the apple II I discovered that you could make animations by using XOR to erase and redraw. Did you know that's patented?

Its not the royalty check that is the problem (4, Insightful)

nurb432 (527695) | more than 10 years ago | (#9807412)

Its the cease and desist letters that come along first...

You cant get blood out of a turnip, but you can make the turnip's life miserable...

DOOM III is OUT! (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#9807415)

woohoo!

The real OSS enemy has time and money (1, Insightful)

Anonymous Coward | more than 10 years ago | (#9807416)

Perhaps the average patent-holder has many hurdles which may prevent it to sue OSS developers, but the real enemy (read, Micro$oft), has time and money and lawyers and the will to harm us.

Re:The real OSS enemy are lawyers (1, Flamebait)

EmbeddedJanitor (597831) | more than 10 years ago | (#9807867)

The real enemies, apart from M$, are the lawyers.

Many patent holders would not go make a case against OSS, but there are a certain breed of scumbags out there who make it their biz to go search for patents and potential violators. They then contact the patent holder and ask for the right to go chace the infringer at no cost to the patent holder, except for a slice of the action.

Once the lawyer bastard has a "percentage ownership", the patent holder loses a lot of their rights as to whom they will pursue or not. Even if the patent holder is a nice guy, the whole business is reduced to lawyer level (ie lower than shark shit) morality.

Security matters (2, Interesting)

gmuslera (3436) | more than 10 years ago | (#9807425)

At least in security you must assume your enemy have a lot of resources and is even smarter than you. With software patents, and you project being in risk because some essential portion is patented by someone else, people could doubt in wasting time if even when sucessful all could fall because the owner of the patent succeed in making trouble.

And if well could be difficult for individuals holding patents, what about patent trading? If my project puts in the way of i.e. some Microsoft commercial program and starts to be viewed as a threath or at least a cause of not so high profits they could have the resources and the will to probably end my entire project.

GPL is incompatible with patnets (-1, Flamebait)

Anonymous Coward | more than 10 years ago | (#9807429)

The GPL makes it illegal to distribute GPL software that violates patents. This is routinely flouted by GPL developers who knowingly implement and distribute things like MPEG-4 and MP3.

This is the most significant problem "FOSS" has with patents, one of its own making.

Re:GPL is incompatible with patnets (1)

Rosco P. Coltrane (209368) | more than 10 years ago | (#9807481)

The GPL makes it illegal to distribute GPL software that violates patents.

You Sir are quite a poor troll [novalis.org] .

Re:GPL is incompatible with patnets (1)

Rosco P. Coltrane (209368) | more than 10 years ago | (#9807495)

Hmm sorry, my bad, I read "The GPL makes it legal...". Nevermind...

It's not just about royalties (1)

linuxhansl (764171) | more than 10 years ago | (#9807434)

There's also opportunity costs that an "inventator" can claim.
The claim would be that the "inventor" is losing money, because the "invention" is illegally available for free as open source.

However we twist and turn it, patents are there to get a lock on an idea to make money of said idea. Any way to limit the possibility of making money can be prosecuted. Hence Software patents still are bad.

Corporate bullies (5, Insightful)

MoonBuggy (611105) | more than 10 years ago | (#9807435)

While the points in the article show that patents aren't easy to use in order to scrub out OSS projects, I know plenty of people would simply fold when faced with the prospect of a long expensive legal battle with a team of lawyers who have funding that is, for all realistic purposes, limitless even if the leader of the open source project knew they were in the right.

If you write something that [big company] doesn't like, they sue and you have to either drop the project that's taking up time anyway or fight and risk a chunk of your own money then you are quite likely to pick the path that doesn't potentially leave you in the gutter, particularly if you have a family depending on your income and the program was just a little 'spare time' project.

The true legalities may not be too bad, but the big corporations have yet another way to threaten the little guy and I wish we could count on them to do the right thing and not abuse there cash reserves by draining people dry, but past experience shows that companies often don't have this kind of common decency.

Big company, little company (4, Insightful)

rumblin'rabbit (711865) | more than 10 years ago | (#9807661)

It's an article of faith that big corporations are greedy and nasty and the root of all evil. Heretic that I am, I don't buy it.

Although big corporations have very deep pockets, they also have something called a reputation that they value greatly. Attracting the wrath of IT managers throughout the world is no small matter to them. For this reason, their claws often remained sheathed.

Might I suggest that it's a new breed of company, small or mid-sized ones, whose very raison d'etre is to collect valuable intellectual property, that we have the most to fear from. They've got everything to win, little to lose, and they don't give rat's ass about their reputation.

One example - SCO. A near worthless organization (about $10 million in market capitalization) until they discovered they "owned" Linux. They have been accused of ties with Microsoft (there is some evidence through BlueStar), but I'm not convinced. The Justice Department is ever watchful these days.

A second example - Teleshuttle Technologies, subject of a recent post ( http://yro.slashdot.org/article.pl?sid=04/07/21/15 39205&tid=155 [slashdot.org] ).

Expect to see more of them as time goes by.

A question I've always had... (4, Interesting)

pongo000 (97357) | more than 10 years ago | (#9807454)

...and one I was hoping Mr. Rosen had an answer for: Exactly who does one sue for patent infringement when it comes to OSS? Once OSS has been "released", you can't call it back. In many cases, alleged infringers are given the opportunity to either license the patented technology, or to no longer use the technology.

Although IANAL, I maintain that patents pose no real threat to OSS development, since authorship of OSS is a "moving target" (especially where derivative works come into play). Most OSS author are not likely to agree to royalty payments, so exactly what recourse does the accuser have at that point?

Re:A question I've always had... (2, Informative)

dirk (87083) | more than 10 years ago | (#9807510)

While you are correctly ou can't "call it back", they can make it illegal to use. If I release software X, that infringes on a patent Y, person or company Z (remember, not all patents are held by big companies) can sure me over my software. If they win, it was essentially illegal for me to release my software, since I didn't have the rights to patent Y. So at that point, the software I wrote is no longer under the GPL, as I didn't have the rights to release it. So it essential null and void. It would be like stealing the source of Windows and releasing it under the GPL. You can't stop people from trading it, but it still isn't legal, since you didn't have the right to distribute it in the first place.

Re:A question I've always had... (1)

Halfbaked Plan (769830) | more than 10 years ago | (#9807511)

Anybody who distributes the OSS will be sued.

Sure, you can use Freenet to distribute it.

That's not gonna win any commercial IT penetration.

Re:A question I've always had... (1)

BillyBlaze (746775) | more than 10 years ago | (#9807525)

It is true that many projects could be continued elsewhere - look at Myth, formerly PlayFair, which moved overseas in response to legal theats. But driving useful software underground and overseas is still a bad thing - and good luck convincing your boss to let the company run software hosted in Elbonia for legal reasons.

Re:A question I've always had... (1, Informative)

Anonymous Coward | more than 10 years ago | (#9807563)

If the company will outsource to India or elsewhere, why would they balk at running software remotely to get around patent laws?

Re:A question I've always had... (1)

dmaxwell (43234) | more than 10 years ago | (#9807539)

They'll sue and harass anyone who tries to publically maintain a project. They'll also sue and harrass distributions and mirror sites.

*nods* (2, Insightful)

JamesTRexx (675890) | more than 10 years ago | (#9807473)

Indeed, it's hard to sue someone for money if they don't make any from the open source software they write. It would at most only halt the development until there's an alternative to that part that's patented.
But I think it's more likely there's more prior art to debunk the patent and drop any case in court.

Mixed message (1)

Artifakt (700173) | more than 10 years ago | (#9807475)

The article points out some good reasons for not panicing. To explain them, it then mentions Giant Asteroid Impacts and Mutually Assured Distruction as for a massive nuclear war. These are not the best metaphors to choose in explaining why things are not really all that bad.

Constitutional solution (0)

Thinkit4 (745166) | more than 10 years ago | (#9807476)

Section 8, Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

Amendment 1: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment 1 strikes down section 8, clause 8. Patents and copyrights are unconstitutional.

Re:Constitutional solution (1)

BillyBlaze (746775) | more than 10 years ago | (#9807551)

Sig says it all. The Supreme Court has said that copyright law is compatible with the first ammendment only because of fair use. I'm cool with that (except that life plus seventy isn't limited in my book). But code is speech, not a machine. Patent law never stops you from communicating with someone, so it shouldn't be able to stop you from distributing your code - those actions are one and the same.

Re:Constitutional solution (0, Flamebait)

black mariah (654971) | more than 10 years ago | (#9807572)

What the fuck are you talking about, idiot?

Re:Constitutional solution (0)

Anonymous Coward | more than 10 years ago | (#9807588)

Worst IANAL ever.

Think before you do a patent search (4, Insightful)

Beryllium Sphere(tm) (193358) | more than 10 years ago | (#9807485)

There's a bug in the idea of doing patent searches.

To reproduce this bug, go through the following steps:
1. Look for patents in the area where you're working.
2. Find a patent which is related but not identical to what you're doing.
3. Continue what you're doing.
4. Get sued for infringement by the patent owner.

Expected:
Someone gives you credit for due diligence.
Actual:
Owner of related but not identical patent asks for triple damages for "willful infringement" using your knowledge of their patent as evidence. The threat of paying out three times as much forces you to settle unfavorably.

Then do what Linus suggested.. (2, Insightful)

zoloto (586738) | more than 10 years ago | (#9807605)

simply don't look them up
don't care to know of them.

create your work, and enjoy it.

[my step]
if it steps on someone's toe (which is doubtful) then ignore him until you have positive proof presented that you did in fact do what you did with willful intent to violate his patent... in that case, he can't

Re:Think before you do a patent search (1)

throbber (72924) | more than 10 years ago | (#9807891)

This is easy to avoid. ... get someone else to look for you. It might be expensive though.

disagree, this will become a war against FOSS (5, Insightful)

Anonymous Coward | more than 10 years ago | (#9807516)

Mr. Rosen is a smart guy who knows about open source. (And I appreciate his "summary" at the end of the article, for those of us who never RTFA ;-). But I find his recommendations a little hard to swallow.

1. Don't be too paranoid about the patent problem

The guys with the patents only have two hurdle to cross: writing the cease and desist letter, and writing the FUD press release ("Linux stole are technology"). This *first* step in patent litigition can kill an open source project, never mind the *last* step (getting the royalty checks).

Sure, maybe Mozilla and Apache will survive a patent attack. But what about a smaller open source project? The "guy in mom's basement". These guys will just pull their projects, regardless of the merits of the case.

2. Don't try to out-invent the big guys.

Don't try to out-code them either, right? Wrong!

If open source can produce a product that competes with a multi-billion dollar company's product, it can pool its resources to generate patents. We should find a way to achieve this goal.

I bet many clever open source programmers can find all kinds of stuff to patent in their code.. do you use a checksum to save some computation? Use a clever algorithm to distribute work among nodes? Transfer data out-of-order to exploit some optimizable properties of data? Look in your code, start thinking in terms of patents. Keep your bar LOW. Even the simplest thing is patentable, as we have seen time and time again.

Take software licenses as an example: before the GPL, software licenses were an afterthought.. you just wanted to make sure you got credit. But the GPL is a tactical weapon that opened people's eyes to the issue of software licensing and the world of draconian EULAs we now deal with. Even if you don't like the GPL you must agree that licensing is almost as important as the quality of the code itself.

We need to have the same eye-opener when it comes to patents. Maybe one of the big guys like FSF or Apache should take the first step and start applying for patents. Start a "patent fund" to research and file the patents.

3. Conduct a reasonably diligent search for patents we might infringe.

Why? What do we do when we find a patented technology that has no substitute (like "1-click ordering", the best you can do is make it "2 clicks")? Might as well ignore them until the C&D comes. Let *their* legal departments do the work.

Design around patented technology wherever possible.

What if it's not possible? What if the patent depends on, say, some part of a public spec? Either violate the patent, violate the spec, or go home. But generally this is good advice. If you know you are violating a patent, come up with something better, if you can..

5. Identify allies who can defend us with their patent shields.

This is good advice. Find a company with a "patent promise" that they won't litigate patents offensively.

6. Withhold our software from those who sue us for patent infringement.

Uh, okay, that'll show em. Hey microsoft! Your license to distribute Linux has just expired! TAKE THAT! And how will "the guy in the basement" enforce this anyway???

Make no mistake, the bigco's (microsoft in particular) are salivating at the thought of destroying open source and painting them as "IP theives" all in one blow.

If the sky isn't falling yet, it will be someday.

I would add a #7 to his list:

Make sure the business world understands the value proposition of open source and software freedom. It's not about altruism or people sitting at home saying "I'd like to write a content management system today, for free". It's about talented people solving real business problems for their own benefit. It works in the free market because it *is* the free market. It's not anti-competitive, it *is* competition: you're as good as your code, and no better.

When microsoft tries their attack, the companies using open source will stand up for it. They'll be on our side because their business depends on it. We can't let Microsoft FUD run the show.

SCO is just a sideshow compared to what is possible. SCO is like that incompetent "shoe bomber".. comical, but also scary because you know they are after you.

Solution: change a few words in the GPL. (0)

Anonymous Coward | more than 10 years ago | (#9807919)

What if the GPL were modified so that the right to use ceases if a patent suit is begun? With a registered copyright, that's 100,000 USD per infringement of copyright. So, the scenario runs like this:

1) big corp sues little FS developer.
2) 100 projects with the patent suit clause decend and demand retribution, yet all are willing to settle if the patent is licensed. Want to bet that even Microsoft has some FS somewhere in their infrastructure?
3) Patent suit is settled with a paid up license to avoid 100 little copyright infringement suits in a dozen countries.
4) ????
5) Errrr... well in safety is profit.

IANAL-IAFYLS. Is it legal? Could it work?

Faulty premises (4, Insightful)

Anita Coney (648748) | more than 10 years ago | (#9807541)

Part of Rosen's argument is based on the fact that patent suits are hard to win in court. The other part of Rosen's argument assumes that anyone using patents against open source is looking for money, i.e., royalty payments.

Both of those arguments fail when applied to Microsoft. Microsoft would never use its software patents to collect royalties. It would use them to make companies afraid to use open source and compel them to use Microsoft's products.

Thus, it does not matter if Microsoft's patents are valid or not, when a company gets sued, Microsoft will offer a deal similar to this: Stop using open source and buy our products.

The money monkeys in charge of the companies will fold because it will be more cost effective to simply buy Microsoft's products rather than risk losing at trial. After Micrsoft wins a few of these "settlements" open source will begin to look unattractive to anyone else considering it.

Re:Faulty premises (1)

kiwirob (588600) | more than 10 years ago | (#9807683)

Yes Microsoft could pull the old "Stop using open source or we will sue" if you use our patents. But this action would most likely be seen as anti-competitive behaviour by a convicted monopolist.

If they tried this sort of thing I think they would end up in a world of trouble. Will they try? Probably!!

Re:Faulty premises (0)

Anonymous Coward | more than 10 years ago | (#9807760)

"Thus, it does not matter if Microsoft's patents are valid or not, when a company gets sued, Microsoft will offer a deal similar to this: Stop using open source and buy our products."

See you are wrong because this is a case of antitrust. Microsoft attacks via proxy. In addition Microsoft does not have to say boo, those adverse to risk will realize all on their own that Open Source is a risky propisition all on their own. Microsoft can just let it slide that so and so opensource product is in their opinion in violation of their IP. They will vigerously protect themselves from many things but the carrot will be used far more than the stick. MS patents are for those who can pay and leverage against others who would wage war on them in the courts.

Microsoft has been using FUD for years, why should they change when it works so well? The other thing they are great at is embrace and extend, something that Open Source advocates should worry more about than patents.

Let's think about this... (3, Interesting)

maztuhblastah (745586) | more than 10 years ago | (#9807568)

1) SCO goes on a crusade, accuses anyone/everyone associated with Linux. IBM steps up to the plate and pours tons of time and money into defending Linux. Result? SCO f*ck's their relationship with Baystar, Chrysler, and McDonald's to hell and back and watches their stock go swimming in Wall Street's crapper.

2) Microsoft patents anything and everything in an attempt to both block open source competition and pave the way for Longhorn's release. Result? Apple upstages MS with the demonstration of Longhorn's features in working form in Tiger. Microsoft shits their pants as they realise that those features were implimented not only more efficiently than they were able to, but also without violating any patents. The open source community continues to work (almost) uninterrupted.

3) Microsoft throws a fit, heats up the presses, and launches a massive wave of FUD at the public. Results? Just that...the IT world looks at the FUD, looks back at the results, and continues to depend on Linux/BSD/etc. for servers...

4) ...you can contribute to this one...


Somehow I doubt that patent sprees will ever have a major effect on the open source movement...

Re:Let's think about this... (0)

Anonymous Coward | more than 10 years ago | (#9807607)

2) Apple and Microsoft cross-license each others' patents, so this doesn't affect Open Source at all.

2a) Who's to say that Apple won't sue Linux developers for infinging their patents? Apple is much more legally agressive than Microsoft.

Remember the cotton gin (3, Insightful)

Bob Cat - NYMPHS (313647) | more than 10 years ago | (#9807569)

Eli Whitney had a patent, but he couldn't sue the thousands who made their own. Also, lawyers will only go after the deep pockets, so if you are an infringer living in your parent's basement, they can't justify any action that loses them money.

Re:Remember the cotton gin (1)

BillyBlaze (746775) | more than 10 years ago | (#9807655)

If Eli Whittney had the resources Microsoft has, and the basement infringers were undercutting their main product, you can bet the industrial revolution would have sucked. And if he patented interchangeable parts, it never would have happened.

Re:Remember the cotton gin (0)

Anonymous Coward | more than 10 years ago | (#9807675)

Typical misinformed slashbot. Most Industrial Revolution inventors did successfully enforce their patents, in fact the Industrial Revolution is considered a triumph of the patent system.

Re:Remember the cotton gin (1)

Bob Cat - NYMPHS (313647) | more than 10 years ago | (#9807684)

Is the computer revolution somehow NOT sucking?

Not impressed (1, Interesting)

Anonymous Coward | more than 10 years ago | (#9807573)

Can the open source community create its own patents?

The people commonly referred to as the "open source community" - in this instance meaning the hackers and developers who write much open source software -- can never generate the number of patents obtained by the big patent powerhouse companies. Filing patent applications simply takes too much time and costs too much money.

I'm less than impressed with this guy's reasoning. The fact that we can't generate the same volume of low quality patents as a Microsoft is beside the issue. Quality can beat quantity. A few key patents could exert enormous leverage, particularly if they were closely linked to widely accepted standards that even a Microsoft has to respect.

The writer also does not realize that an open source group could accept donated patents, and (in the U.S.) return some of their value to the inventor (or corporate owner) in the form of a tax-deduction. The donor would be a double winner. His idea would be widely adopted and, if he/it has taxable income, he/it would get a tax deduction.

And while it is true that those patents would offer no protection to a patent-holding company with no other business (no patent can), it would offer some protection against a SCO or a Microsoft. And that's where the real danger lies.

--Mike Perry, Inkling blog [inklingbooks.com] , Seattle

Patents as a double edged sword? (4, Interesting)

earthforce_1 (454968) | more than 10 years ago | (#9807585)

I have been sort of thinking about this, and how patents are used in industry. Perhaps the intent can be reversed, as are done with software licences under copyleft.

Can we devise something analogous to GPL for a software or hardware patent, so that if you use it in your product or design, then you must provide full source code and/or schematics and/or ensure that all other patents used in the product or software are available under the same terms. Then all open source advocates have to do, is create their own patent portfolio, as long as we can find lawyers willing to help with the filing. We can fight fire with fire, the next time somebody tries to embrace and extend, they will have serious trouble if the interface is protected by a public patent.

Hello, RMS - are you out there? Wanna bite?

Re:Patents as a double edged sword? (1)

Aim Here (765712) | more than 10 years ago | (#9807797)

Trouble is, all the GNU Free Patent Licenses in the world won't help you a jot, if Microsoft or whoever sets up a sock puppet company which makes nothing, sells nothing, and owns nothing but a few lawyers, some capital borrowed from the likes of Baystar, and some patents bought from Microsoft, and direct orders from Bill to clobber [your favourite Free/Open Source Software project].

That pretty much renders it invulnerable to a strategy based on defensive patents (or, as in the original article, wording your copyright license to withdraw permission to use your software from patent-abusing shitheads)

You're better off saving your money and just documenting everything as prior art.

Something like this? (0)

Anonymous Coward | more than 10 years ago | (#9807941)

Something like this? [newsforge.com]

-John Le'Brecage

Patents are already annoying! (0, Troll)

Blymie (231220) | more than 10 years ago | (#9807636)

Yeah, right.

And with messages like these in programs:

http://etrade.malformed.org/Screenshot.png [malformed.org]

Things aren't going to get any better! Damn patents.

Whiskey Tango Foxtrot over? (1)

Cid Highwind (9258) | more than 10 years ago | (#9807694)

Are you really trying to pimp a porn site (and one hosted on geocities, at that!) by linking to screenshots of spam mail, in a slashdot comment about something totally unrelated to porn or spam? Can internet marketing possibly sink any lower?

Or was that meant to link to a different image?

Just my two cents (1)

ogl_codemonkey (706920) | more than 10 years ago | (#9807692)

Yes, software patents are evil - yes, copyight is great for protecting an implementation, yet allowing precious operability.

However, isn't it the case that one of the major problems with protecting, by patent or otherwise, your (or your team's/company's/whatever's) software is a matter of juristiction? For software contributed to by dozens of programmers across the Intaarweb, and hosted on probably whatever cheap, offshore server will take it - who has juristiction? The country of origin of the project mantainer?

If GNUXyz, hosted in Brazil, mantained by a Hungarian hacker, infringes a US patent, whom do you sue? Can you extradite them? Seize their host's servers?

I don't know. Up with globalization under communisim!

Can't Design Around (2, Interesting)

HardYakka (265884) | more than 10 years ago | (#9807709)

The only patent I can think of that couldn't be designed around would be the case where a standard is patented i.e. MP3 encoding.

Can anyone think of any other case were a patent could not be designed around? If so, would the author still be liable if the patent was designed around after they were informed of the infringment?

Royalties is not the problem (1)

Fuzzums (250400) | more than 10 years ago | (#9807782)

The real problem is the money that is involved in lawsuits.

I'm Chicken Little I guess . . . (3, Interesting)

Eric Damron (553630) | more than 10 years ago | (#9807786)

It is my sincerest hopes that Lawrence is correct; that some in the open source community are over stating the danger of patent litigation. He does NOT however state that there is no risk. I must have the "Chicken Little" syndrome that he talks about. Let me share my reasoning:

From the article...

"Does the dramatic increase in the number of software patents portend a catastrophe for open source software?

Some argue that the threat of patents is vastly overstated. They point out that, while there are from time to time serious assertions of software patents, patent litigation is in practice very rare. This reflects both the high cost of such litigation and the difficulty of winning. "

Although patent litigation has so far been rare, it is my belief that Microsoft sees the writing on the wall and will either directly or indirectly though the use of SCO-Like actions fund law suites in an effort to destroy any open source project that it feels is on its turf. Just because patent litigation has been rare in the past is no assurance that it will remain so. How many copyright litigation cases have been levied against the open source community? Microsoft helped SCO fund it's current litigation and I believe that it is a signal that they intend to use the law as a new anti-competitive tool.

Litigation against a well funded corporation like IBM would be incredibly expensive but for smaller groups like the SAMBA team it wouldn't. Microsoft wouldn't have to win. All they would have to do is drain the open source company's coffers dry. Unless we all stick together, of course. Will we? Would there be a white knight corporation out there willing to swoop in and save the small open source developer? I don't know the answer to that.

I believe that Microsoft's strategy is to ensure that Linux cannot be compatible with their next version of Windows. They have been filing ten or more patents every day related to Longhorn. The idea is simple. Find standards that you feel will become important and then patent as much technology as close to those standards as possible.

Remember that Microsoft doesn't want to allow Linux to talk to it's monopoly OS. If they succeed in their strategy Linux, they hope, will wither on the vine. Look for Microsoft try to patent new protocols and force them to become "the standard." If they can control the way in which computers talk to each other via their monopoly and patent the way computers talk to each other then Linux as we know it could be toast.

Re:I'm Chicken Little I guess . . . (1)

ogl_codemonkey (706920) | more than 10 years ago | (#9807847)

Not toasted yet - it's still quite possible it'll be accepted as its own little beastie; free from the *need* to conform... unlikely, but possible. ... we can live in hope. Personally, I'd kind of like to see the day when the Tech support guys from my telco ask what OS I'm runing, not what Windows version...

Better Blackmail!! (1)

logicnazi (169418) | more than 10 years ago | (#9807793)

The linked paper seems to suggest that the open source community doesn't have a sufficently threatening way of counterattack. However, he only considers liscensces that terminate rights to that *particular* piece of code. What if the GPL revoked the rights to *all* other code liscensced under the GPL in the case of a patent or copyright suit.

Especially if this strong liscenscing clause revoked the right even to *use* the software in this case the FSF would have a very strong position. Almost any large software company probably uses GPLed software somewhere, even if it is only in binary form in drivers or software tools. Microsoft, especially makes use of GPLed software in it's SFU package and so forth.

The only problem I see is that this might be *too* powerfull/severe. A disaffected employee could contribute company code to a GPLed software knowing that any patent claim the company submited would bring down the wrath of these liscensces. Also are such provisions even legal? Perhaps if we restricted the backlash provision only to instances the FSF board verifies weren't copied.

Article owner misses point.... (4, Insightful)

russotto (537200) | more than 10 years ago | (#9807828)

And slashdot posters by and large get it right. Now there's something that doesn't occur every day.

A few points both have missed so far, though. One is that a methodical patent search is impossible; patents use such opaque and obfuscatory language (often deliberately) that there's no way you can search for a patent on any given technique you've been using. Further, it may be a submarine patent.

Prior art is largely irrelevant because the patent system is broken; the patent office doesn't seem to check it, even when the prior art is other patents (see, e.g. the LZW patent mess). Part of this is because patents (as I mentioned above) are essentially unsearchable. Prior art works when you've got deep pockets and the lawyers to overcome the assumption of validity. When you're Joe Open Source Programmer, you're screwed as soon as they file a lawsuit (assuming you had the nerve to ignore the C&D), regardless of how much prior art there is.

So, on his recommendations --

1) is good. Not because the patent problem isn't serious, but because there's nothing you can actually do about it. Like Global Thermonuclear War, you just have to plan for it not coming.

2) is pointless. Our own prior art won't prevent the patents from being issued

3) is a mistake. Each patent you discover is more work you have to do to avoid it, if that's even possible, and more chance of getting nailed for willfull infringement. Doing a patent search under these circumstances is like searching for mines with a metal probe.

4) is good -- if you happen to know about the patent, you should avoid it.

5) is fine, if you have allies you can trust. You probably don't.

6) Pointless again. So you terminate their right to use their software. They're either a litigation company which does nothing, a single-product company which is trying to force the world to use their product, or a giant megacorporation. The first two won't use your software anyway, and the last has the lawyers to spit on your termination agreement -- not to mention the programmers to replace your software if necessary. Terminating the rights of patent-users is a feel-good measure only.

The solution direction is clear... (1)

3seas (184403) | more than 10 years ago | (#9807852)

.... if a patent application is written using the right lingo making it sound complicated and NOT fitting the classifications of what CANNOT be patented then even swinging sideways in a swing will get patent granted ..... SOOOOO...

Using this exact lingo technique but in describing something in terms fitting the classifications of what cannot be patented..... .... go figure....

Time to study what qualities cannot be patented and why....

``like d'oh`` (1)

mqx (792882) | more than 10 years ago | (#9807911)

I mean, for all the FUD over how software patents "might impede FOSS", the reality is that FOSS has been doing fantastically well for the last many years, despite the presence of software patents.

The killer patent... (2, Funny)

Eric Damron (553630) | more than 10 years ago | (#9807917)

I think I've come up with a patent that could destroy Microsoft... Let's obtain a patent on the buffer overflow! Think about it...

Oh damn... I forgot about prior art... Never mind...
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