Software patents and free software

Opposition to software patents is widespread in the free software community. In response, various mechanisms have been tried to defuse the perceived problem.

Positions from the community

Community leaders such as Richard Stallman, [cite web
url=http://www.ifso.ie/documents/rms-2004-05-24.html
title=Transcript of Richard Stallman speaking about software patents|] Alan Cox, [cite web
url=http://www.linuxformat.co.uk/modules.php?op=modload&name=Sections&file=index&req=viewarticle&artid=15#patents
title=Alan Cox on software patents
date=2005-08-01|] Bruce Perens, [ [http://perens.com/Articles/Patents.html /home/bruce/Patents.html ] ] and Linus Torvalds [cite web
url=http://linux-foundation.org/weblogs/openvoices/linus-torvalds-part-ii/
title=Linux Foundation Interview with Linus Torvalds, mostly talking about software patents] [cite web
url=http://www.effi.org/patentit/patents_torvalds_cox.html
title=Open Letter on Software Patents from Linux developers] and companies such as Red Hat, [ [http://www.redhat.com/legal/patent_policy.html redhat.com | Red Hat Patent Policy ] ] and MySQL, [ [http://www.mysql.com/company/legal/patents.html MySQL AB :: MySQL Public Patent Policy ] ] and community groups such as FSFE, [ [http://fsfeurope.org/projects/swpat/ FSFE - Software Patents in Europe ] ] IFSO, [ [http://ifso.ie/projects/swpats.html Software Patentability & EU Directive COD/2002/0047 ] ] and others have worked to raise awareness of the problems of software patents for free software.

Benefits of free software

Patent holders can require infringers of their patents to pay a fee for ongoing use of their patent, or to stop using the idea covered by the patent software (i.e. stop using the software that used the patented idea). With free software, software users have the additional option of removing the patented feature from the software. This allows them to continue using the software, but without that patented feature. However, if that patented feature is very important, then the software may not be useful without it. Also, this would not exempt the software user from having to pay damages for the past infringement of the patent.

US patent attorney Dan Ravicher argues that free software's distributed development model which leads to fewer concentrations of wealth, plus free software's public benefit create economic and legal protections. [cite web
url=http://www.groklaw.net/article.php?story=20040901004705872
title=Patents - Why Free/Open Source Software Might Have Less to Fear than Non-Free Software
author=Dan Ravicher|]

Problems for free software

Free software projects cannot agree to patent licences that include any kind of per-copy fee. No matter how low the fee is, there is no way for a free software distributor to know how many copies are being made. Also, and adding any requirements to pay or to notify someone each time a copy is made would make the software no longer free software. [cite web
url=http://www.ifso.ie/documents/rms-2004-05-24.html#licence
title=The Dangers of Software Patents
author=Richard Stallman]

A patent licence that is royalty-free, or provides a one-time worldwide payment is acceptable. Version 2 of the GNU General Public License does not allow software to be distributed if that software requires a patent licence that does not "permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you". [cite web
url=http://www.gnu.org/licenses/old-licenses/gpl-2.0.html
title=GNU General Public License version 2|]

The 2004 OSRM study

In 2004, Open Source Risk Management commissioned a patent study, carried out by Dan Ravicher. For this study, Ravicher performed patent searches to estimate the patent-risk of the Linux kernel. His conclusion was: [cite web
url=http://www.osriskmanagement.com/press_releases/press_release_080204.pdf
title=OSRM PR: Results of First-Ever Linux Patent Review Announced
format=PDF]

In conclusion, he found that no court-validated software patent isinfringed by the Linux kernel. However, Ravicher also found 283 issued butnot yet court-validated software patents that, if upheld as valid by thecourts, could potentially be used to support patent claims against Linux.

Techniques for reducing harm

Patent retaliation

"Patent retaliation" clauses are included in several free software licences. The goal of these clauses is to create a penalty so as to discourage the licensee (the user/recipient of the software) from suing the licensor (the provider/author of the software) for patent infringement by terminating the licence upon the initiation of such a lawsuit.

The Free Software Foundation included a narrow patent retaliation clause in drafts 1 and 2 of version 3 of the GPL, however, this clause was removed in draft 3 as its enforceability and effectiveness was decided to be too dubious to be worth the added complexity. [cite web
title=Richard Stallman speaking about GPLv3 in April 2007
url=http://fsfeurope.org/projects/gplv3/brussels-rms-transcript#retaliation|]

Examples of broader clauses are those of the Apache License and the Mozilla Public License.

Patent pools

In 2005, IBM, Novell, Philips, Red Hat, and Sony founded the Open Invention Network (OIN). OIN is a company that acquires patents and offers them royalty free "to any company, institution or individual that agrees not to assert its patents against the Linux operating system or certain Linux-related applications". [cite web | date = November 10, 2005 | url=http://www.openinventionnetwork.com/press_release11_05.php | title=Open Invention Network formed to promote Linux and spur innovation globally through access to key patents |publisher = Open Invention Network | accessmonthday = April 17 | accessyear = 2006]

Novell donated the valuable Commerce One web services patents to OIN. These potentially threaten anyone who uses web services. OIN's founders intend for these patents to encourage others to join, and to discourage legal threats against Linux and Linux-related applications. Along with several other projects, Mono is listed as a covered project.

Lobbying for legislative change

Movements have formed to lobby against the existence and enforceability of software patents. The earliest was the League for Programming Freedom in the USA. Probably the most successful was the anti-software-patent campaign in Europe that resulted in the rejection by the European Parliament of the Proposed directive on the patentability of computer-implemented inventions which, the free software community argues, would have made software patents enforceable in the European Union. A fledgling movement also exists in South Africa. [cite web
url=http://www.ftisa.org.za/
title=Freedom to Innovate South Africa|]

Promises from patent holders

Some software companies who hold significant patent portfolios have made non-aggression pledges to the free software community. These have varied in scope and have received a variety of responses. IBM, [cite web
url=http://linuxdevices.com/news/NS9492990539.html
title=Top patent awardee donates 500 patents to open source] Sun, and Nokia [cite web
url=http://linuxdevices.com/news/NS8236182857.html
title=Nokia gives Linux bye on patents] are three examples. These have been described by Richard Stallman as "significant", "not really anything", and "next to nothing", respectively. [cite web
url=http://www.linuxdevices.com/articles/AT4665245733.html
title=Nokia's patent announcement next to nothing
author=Richard Stallman]

Infringement claims

Microsoft has claimed that free software such as OpenOffice.org and the Linux kernel violate 235 Microsoft patents and said that it will seek licence fees. [cite web
url=http://money.cnn.com/magazines/fortune/fortune_archive/2007/05/28/100033867/
title=Microsoft takes on the free world
publisher=CNN
date=2007-05-14
last=Parloff|first=Roger|]

In January 2008, Trend Micro accused Barracuda Networks of patent infringement for distribution of the ClamAV anti-virus software. [cite web
url=http://www.linuxworld.com/news/2008/012908-barracuda.html
title=Barracuda turns to open source users for patent research] [cite web
url=http://www.barracudanetworks.com/ns/legal/
title=Legal Defense of Free and Open Source Software
publisher=Barracuda Networks]

Microsoft's patent deals

In November 2006, a highly controversial agreement was made between Novell and Microsoft that included patent licensing. [cite web
url=http://www.microsoft.com/interop/msnovellcollab/patent_agreement.mspx
title=The MS-Novell patent deal|] This led to much criticism of Novell by the free software community. [cite web
url=http://techp.org/petition/show/1
title=Bruce Perens's petition criticising Novell|] [cite web
url=http://boycottnovell.com/
title=The "Boycott Novell" website|]

In June 2007, Xandros announced a similar deal [cite web | url = http://www.groklaw.net/article.php?story=20070604183519938 | title=Groklaw article on Xandros' Microsoft deal] [cite press release |url = http://www.microsoft.com/presspass/press/2007/jun07/06-04XandrosPR.mspx | title=Microsoft, Xandros Broad Collaboration Agreement Extends Bridge Between Commercial Open Source and Microsoft Software | rl=http://forums.xandros.com/viewtopic.php?t=31406
title=Xandros community forums, first thread on this topic|]

On June 13, 2007, a deal was reached between Microsoft and Linspire. [ [http://desktoplinux.com/news/NS9642338710.html Linspire, Microsoft in Linux-related deal ] ] In return, Linspire would change its default search engine from Google to Live search. [ [http://linux.slashdot.org/linux/07/06/14/1227201.shtml Slashdot | Linspire Signs Patent Pact With MS ] ]

Ubuntu founder and director Mark Shuttleworth has said that Ubuntu will not be making any such deal, [cite web
url=http://www.markshuttleworth.com/archives/127
title=No negotiations with Microsoft in progress
accessdate=2007-06-25
author=Mark Shuttleworth
authorlink=Mark Shuttleworth
date=2007-06-16
work=here be dragons
quote=We have declined to discuss any agreement with Microsoft under the threat of unspecified patent infringements.|] as have Red Hat. [cite web
url=http://www.zdnet.com.au/news/software/soa/Ubuntu-Red-Hat-reject-Microsoft-patent-deal/0,130061733,339278741,00.htm
title=Ubuntu, Red Hat reject Microsoft patent deal|] These have been joined by a weaker statement from Mandriva [cite web
url=http://corp.mandriva.com/webteam/2007/06/19/we-will-not-go-to-canossa/
title=We will not go to Canossa
accessdate=2007-06-20] that "we don’t believe it is necessary for us to get protection from Microsoft".

On October 2007, [http://www.ipinnovate.com/ IP Innovation LLC] , a company specialized in patent-protection, filed a suit for patent infringement against Red Hat and Novellcite web
url=http://blogs.zdnet.com/Berlind/?p=833&tag=nl.e622
title=First patent suit against Linux has a Kevin Bacon-esque connection to Microsoft
quote="LLC is a subsidiary of Acacia Research Corporation... This past July Acacia hired Jonathan Taub away from his job as Director, Strategic Alliances for the Mobile and Embedded Devices (MED) division at Microsoft and then, just last week, it hired Brad Brunell away from his job at Microsoft where, among other jobs, he served as General Manager, Intellectual Property Licensing."
last=Berlind|first=David
publisher=zdnet
date=2007-10-11
accessdate=2007-10-12] cite web
url=http://www.groklaw.net/article.php?story=20071011205044141
title=Patent Infringement Lawsuit Filed Against Red Hat & Novell - Just Like Ballmer Predicted
publisher=groklaw
date=2007-10-11
accessdate=2007-10-12] [The U.S. patent 5,072,412 concerns the desktop User Interface, see [http://www.google.com/patents?id=3tUkAAAAEBAJ&dq=5,072,412 here] ] . However, IP Innovation LLC is a subsidiary of a company classified by some as a patent troll [cite web
url=http://trolltracker.blogspot.com/2007/08/deeper-look-at-acacia.html
title=A Deeper Look at Acacia
date=2007-08-13
accessdate=2007-10-12] , and commentators suspect a strong connection between this company and Microsoft.

See also

*Software patent
*Software patent debate

External links

* [http://money.cnn.com/magazines/fortune/fortune_archive/2007/05/28/100033867/index.htm CNN: Microsoft takes on the free world] , discusses Microsoft and FSF's position regarding software patents and free software
* [http://www.gnu.org/patent-examp/patent-examples.html Examples of Software Patents that hurt Free Software] , published by Free Software Foundation

References