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Too much protest, methinks.

Wow, Steve Ballmer and Brad Smith certainly touched a nerve. I've read and re-read the article and I can't see what the big deal is. It's not like it should be a shock to anyone that there's unlicensed IP in the Linux Kernel. RMS seems to have been clued in at least :-

1) 20th June 2005: Richard Stallman quoted in an interview with Guardian Unlimited

"A 2004 study of Linux, the kernel of the GNU/Linux operating system, found that it infringed 283 different US software patents. That means each of these 283 different patents covers a computational process found somewhere in the thousands of pages of source code of Linux."

2) 18th December 2005: Richard Stallman interview

"It is so much work to identify all the patents infringed by a large program that only one such study has been done. A 2004 study of Linux, the kernel of the GNU/Linux operating system, found it infringed 283 different US software patents. That is to say, each of these 283 different patents covers some computational process found somewhere in the thousands of pages of source code of Linux."

3) 22nd June 2006: Richard Stallman at the 3nd international GPLv3 conference in Barcelona says

"One large program has been carefully studied by a lawyer in the US, who looked for all the software patents that might prohibit some part of it. That program is Linux, the kernel of the GNU+Linux operating system. He found 283 different patents applying to various techniques and features implemented somewhere in Linux."

4) 21st November 2006: Richard Stallman speaking in Tokyo at the 5th international GPLv3 conference says

"Two years ago, a thorough study found that the kernel Linux infringed 283 different software patents, and that's just in the US. Of course, by now the number is probably different and might be higher."

So if the issue's not the apparently undisputed fact that there's unlicensed IP in the Linux kernel then what is the issue? One assumes it must be what gets done about it. Here there's no one voice speaking for the whole "community".

RMS campaigns to do away with the whole concept of software patents.

Some commercial organisations created a patent pool which licenses only to those who agree not to assert their patents against "the Linux system". They clearly understand the role and nature of patents as their site explains:-

Patents can be powerful tools and are critical to commerce in a number of industries. Without the benefit of the exclusive rights conveyed by patents, it would be difficult to justify the risks inherent in the inventive process where substantial time or cost is involved. At the same time, merely holding a patent does not assure the ability to bring the invention to market. It is this ability to determine who may exploit the invention that gives the patent value. Businesses that infringe on a patent must either stop producing the item they are selling or negotiate an exchange of economic value with the patent owner.

Microsoft attempted to "negotiate an exchange of economic value" and succeeded with the ground breaking Microsoft & Novell Patent Cooperation Agreement - , which has been broadly welcomed both by customers, and analysts, and which has been joined by and replicated with others. The Novell agreement included specific committments to non compensated developers and Individual Contributors to openSUSE.org.

So, why all the fuss over the CNN article? I think it's part of what's been an ongoing maturing process for the free and open source software distributors. Rich Green, Sun Microsystems' Executive VP of Software expressed the flip side of this discussion last week when he "expressed doubts about the current model in which open-source developers create free intellectual property and have others scoop it up to generate huge amounts of revenue". He said the current model is "worrisome and unsustainable". In other words, we're reaching the end of the beginning of "free as in beer" - and that will soon be seen to apply to other people's intellecutal property as much as to open source developers.

Posted: May 15 2007, 04:03 AM by Stephen McGibbon | with 6 comment(s)
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Daniel said:

Mark Shuttleworth (founder of Canonical, which makes Ubuntu GNU/Linux) has an interesting and pertinent post regarding the patent system.  

www.markshuttleworth.com/.../118

There is also a very interesting video of Eben Moglen (lawyer with the Free Software Foundation and Columbia University law professor, who works alongside RMS) speaking about the Novell deal and what is wrong with it from the perspective of Free/Open Source Software:

www.redhatmagazine.com/.../summit-2007-eben-moglen-on-microsofts-summer-of-fear

I think these answer, in part, some of the points you bring up in your post.

# May 21, 2007 3:39 PM

Stephen McGibbon said:

Hi Daniel, thanks for contributing.

To be honest I don't think they address the points at all.

I see Linux advocates building up a couple of patent portfolios. I see free software advocates aggressively asserting their IP rights in court, and I expect that soon be extended beyond just copyright to trademarks and patents.

At the same time I see Microsoft trying to build a bridge that is respectful of the free software model, and the FSF's immediate response is to work to destroy that bridge.

So all in all, I don't think Moglen is acting or speaking in good faith. Do you? Don't you think he's just playing to the gallery?

I spoke to Mark earlier in the year about some of these issues. It's interesting that he says he supports patents in principle but not in the case of software - I think that's symptomatic that he's still thinking through the issue - we're all against trivial patents - and I think we'd all like to see more bridges like the Novell deal.

Again, thanks for taking the time to comment :-)

# May 21, 2007 7:11 PM

Daniel said:

Hi Stephen,

Thanks for the reply.  More and more I'm beginning to get the impression that there really are some fundamental misunderstandings between two groups of mostly reasonable people (although I sometimes question whether folks like Ballmer or RMS fall into that category!).   I do actually think Moglen was speaking in good faith-- I think that he believes that software should be free to modify and redistribute (if the contributors so choose by contributing to a FOSS-licensed project) and he's designing the GPL to protect that.  The Novell-Microsoft deal seems antithetical to that fundamental goal of FOSS, which is why I don't think any FOSS supporter will ever see such a move as an attempt at bridge building.  I think a big misunderstanding stems from the perception that free software should somehow be different if companies are involved in its creation or in making money from it-- I don't think commercial involvement changes things at all; I still see FOSS software as a "public good", like mathematical knowledge should be, whether or not companies contributed to that knowledge.  If I freely contribute something that goes into that pool of knowledge, I don't want someone to have to pay someone else for it.

I think respect of IP in regard to copyright, trademark, and the protection of innovation is extremely important but I think that the patent system as it currently stands rarely protects innovation, and more often squelches it; given how broken things are, it seems we'd be far better off erring on the side of not having any software patents, even if that were to mean there would be some cases where true innovation wasn't as protected as it should be.  I don't think the fact that this is "just how business is done" makes anyone feel any better when hearing comments like Ballmer's.  I think the majority of free software programmers (whether they are getting paid or not) ascribe to a certain ethic of openness and being straight-up with others; in this context, the indirect method of claiming there are patent violations but refusing to say what they are-- how do we know they are not trivial?-- seems especially distasteful.  I also think that-- despite big companies like IBM making much money off of patents-- the majority of contributors to FOSS do not want to gain monetarily through patents or litigation, and that in most cases getting patents is a defensive move.

# May 22, 2007 9:20 AM

Daniel said:

Hi again Stephen,

Did you see the statement by Red Hat's CEO a couple of days ago?  I think his sentiment is somewhat similar to what I expressed.  

news.zdnet.co.uk/.../0,1000000308,39287195,00.htm

Hopefully there is a way to revamp the patent system in order to limit patents to truly innovative ideas, as he suggests.  (Just to be clear, when I spoke about the patent system rarely protecting innovation, it was in relation to software-- not in general).

What is your opinion on the request (by Szulik and others) that Microsoft actually specify the patents it says are being violate and point out where those violations are taking place?  Do you feel that is a fair request?

# May 23, 2007 11:04 PM

Stephen McGibbon said:

Hi Daniel, and thanks again for your comments and the interesting dialogue.

I don’t know whether you visited any of the links that I included in the post. You’ll see that Red Hat is a member of the Open Invention Network – a patent pool. Red Hat is also a contributor/sponsor to the Patent Commons Project – essentially another patent pool.

That’s probably why the article you point to notes: “But he stopped short of calling for their abolition, as have some of his colleagues in the free and open-source software movement. Instead, he urged reform of the patent process.”

We have to work within the system we have. That’s not to say we can’t work to change it and improve it of course. If Microsoft doesn’t patent its inventions then others might. Trivial patents are an issue for the industry and I think to slow innovation – and Microsoft has been calling for patent reform for some time. To quote Brad Smith in the speech I link to:-

Let me be clear about one other thing at the outset. We at Microsoft believe that important improvements should be made in the U.S. patent system. We have benefited substantially as an industry and a country from patent protection. But the combination of technological change and a globalizing economy are creating new challenges for the U.S. patent system. Our patent system is being flooded with new patent applications and an explosion of sometimes-abusive litigation. Although the roots of our patent system are strong, its long-term health is threatened unless we take this opportunity to reform it. Now is the time to act.

I'd like to talk today about reform in four areas:

• Ensuring high patent quality amidst increasing patent quantity;

• Curbing excessive litigation and litigation abuse;

• Promoting international patent law harmonization; and

• Increasing accessibility for individual inventors and small companies around the world

So once again there seems to be more that unites than divides. As any IP lawyer (Moglen for example?) will tell you, IP issues leave you with three choices, you can do nothing; you can litigate; or you can license. I see no reluctance from the community to litigate in defence of its IP – that was one of the points I was making with this post. Microsoft on the other hand prefers to license. I think if you look at Microsoft’s track record you’ll see that Microsoft isn’t an IP aggressor, and as Mark points out, is often the subject of IP aggression.

In the last 36 months Microsoft paid over $1.4 billion to license Intellectual Property rights for its products. Of course Microsoft is interested in licensing its IP to other companies too. As is the standard practice in the industry, private, collaborative discussions are held between companies interested in using one or the others, or each others, technology in their products.

It’s in the course of those private licensing discussions with companies that are looking in good faith for ways of resolving the situation Microsoft walks through a number of exemplary patents and will go as deep as they want to go. I am sure Red Hat’s CEO knows this, but in case he’s reading – Microsoft would welcome the opportunity to discuss these details with Red Hat.

Our experience has been when we do this companies are able to quickly figure out that there is a real issue here – and, importantly, that Microsoft will work with them to resolve it in a constructive way. That’s how the agreement with Novell was reached and Novell’s customers now have coverage for all of the 235 patents.

BTW you can use the “contact me” form to email me if you’d like to talk through some of these points too. I sense that you’re interested in the debate and I think you’re approaching it with an open mind – thanks.

# May 24, 2007 12:57 AM

Daniel said:

I don't think that anybody faults Microsoft or other companies for getting patents for themselves, if that is what is necessary to do to prevent others from getting the patents.  And I know that Microsoft hasn't been very litigious about IP historically (though I don't think it's a mere conspiracy theory when people say that Microsoft tried to undermine Linux indirectly and shadily through SCO's copyright lawsuit).  

But even if Microsoft itself plays in the broken system and pays its 1.4B$ (much of it for IP that it probably shouldn't really have to, and wouldn't have to if reason prevailed), it doesn't make me feel any more inclined to think that others should also have to join in playing within that broken system.  Especially because playing in the broken system is inherently advantageous to bigger companies like Microsoft, and tends to prevent smaller companies (not to mention individuals) from innovating if Microsoft doesn't want them to.  If the broken system were actually protecting innovation, that would be one thing, but as it is that's not usually the case.  Microsoft seeking licensing deals with individual companies using the implied threat of litigation (without having clear cases of valid non-triviallly patented technologies that MS can point to publicly and unashamedly, with both parties agreeing that the patents are valid and not something ridiculous like Amazon's one-click checkout patent), is in many ways as threatening to the free/open source software as actual litigation, and in my opinion represents a very different animal than the defensive use of patents you are referring to.

If everything were open and on the table (and if things were more like the ideal that it seems everyone in the software industry wants), then perhaps things would be slightly different, but the manner in which Microsoft has approached this (making threatening overtures and releasing tallies but not specifying publicly exactly what has been infringed) feels like a dishonest, bullyish tactic.  Honesty and transparency means a lot to me as a consumer.

Thank you again for your response and for your willingness to discuss this with me.  I definitely respect Microsoft's willingness to have employees discuss these topics in the open like this; it serves as a good example of the type of transparency I value and respect.

# May 24, 2007 5:01 AM