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IBM Pledges Not To Use Patents Against Linux
Wednesday, August 04 2004 @ 10:15 PM EDT

Are you sitting down? If so, get ready to leap up for joy. And if you are standing, get ready to pass out. IBM has pledged not to use its patents against Linux, and more than that, it is calling on other companies to do the same. They made the announcement at LinuxWorld:

"'IBM has no intention of asserting its patent portfolio against the Linux kernel, unless of course we are forced to defend ourselves,' said Nick Donofrio, senior vice president for technology and manufacturing, drawing applause in a speech at the LinuxWorld Conference and Expo.

"The tech giant's announcement could relieve some who fear the legal threat of the computing industry's largest patent arsenal. But it doesn't address the more tangible danger that Microsoft, an avowed Linux enemy, could attack.

"Microsoft declined to comment for this story."

That's because they are trying to figure out what to do.

They've been sticking a finger in the air, testing to see what would happen if they launched a patent attack against Linux. Obviously, they wanted to know what IBM would do. I think they know now. Others may have their opinions, and that is fine. And I have mine, and what IBM did today was a fine thing. I too hope that HP and others get cleanly off the fence, and realize that they can't benefit from Linux if they don't also defend it from those who wish to destroy it by gaming the patent system, so they can create a patent monopoly. Here's what you will lose out on if you don't, in Mr. Donofrio's words:

"'Linux is incredible,' he said. 'It is owned by no one and yet everyone at the same time. Thousands of programmers around the world are contributing to it today, contributing to it in a checks-and-balances manner that is impossible with proprietary software.'"

Impossible. Yes.*Impossible* with proprietary software, the man said. And while you are at it, could you fix the patent system too? That is really all that needs to happen, and the software monopoly is over. And then you won't need to be terrified of any monopolies out there, will you? It's a win-win. Just think. No one would ever have to write craven memos like the HP memo that surfaced recently about not being able to do what you want because of fear of Microsoft. Would that not be refreshing?

If you want the Linux golden eggs, you need to keep the golden goose alive. By that I mean, if you want Linux for business purposes. You can't actually kill FOSS. You can only crush it in the US and other countries foolish or corrupt enough to give Microsoft a patent monopoly opportunity. Elsewhere, it will continue to flourish and put your software to shame, and then how will you compete in a world market? No, let's draw a line in the sand here and now. Linux gives the world an opportunity to escape from Microsoft, if you so choose, from its overbearing business practices and from its overpriced swiss-cheese software that is a drag on the economy. Take your opportunity.

Why did you think Microsoft want patents on software? To benefit you, the consumer? So you can have choices? To save you money? To innovate, for crying out loud? As Matthew Szulik of Red Hat said, does anyone believe the current patent system encourages innovation? So, think it over, and follow IBM's lead. And whatever other creative things we can think up to block a patent attack, now is the time.

Red Hat too is thinking, and it pledged today that it along with OSDL will try to get some changes in patent and copyright law, and OSDL announced it will help with any recoding that is necessary to get around patents:

"Red Hat and IBM blasted patent litigation threats hovering over the Linux industry amid reports that Microsoft is serious[ly] considering a legal offensive against the open-source operating system.

"Executives issued their statements after that recently-published report and as the city of Munich, Germany, halted its 14,000-seat Linux migration project reportedly due to concerns about software patent legislation pending before the European Union.

"During his keynote, Red Hat CEO Matthew Szulik got a round of applause when he said he and the Open Source Development Labs (OSDL), will challenge how patents and copyrights are awarded in the U.S. and their application from jurisdiction to jurisdiction.

"'We'll do our best to try to change this,' said Szulik, adding that his firm and others will push the U.S. Government to adopt a form of digital rights protection law that forces vendors to disclose intellectual property in order to receive protection. The U.S. Government, Szulik said, should 'force full disclosure, so if an organization won't disclose source code then let them file for trade secret protection."

Imagine what that would mean for copyrights on software. It simply pulls the rug out from underneath gaming the copyright system. Can you see SCO filing all its code in public? Good grief, you have to sign in blood now, and traverse several moats, wait for the drawbridge and undergo a body search before you can even look at code that turns out to be legacy BSD code. I agree. Let them rely on trade secret protection, by all means, and leave the rest of us to advance software code in peace.

And now a personal word. To all of you who attacked OSRM, and me because of OSRM, who knew about the Microsoft maneuvers and tried to creatively block them, now you know the rest of the story. I didn't write about it before, mainly because I wanted to understand the issue first personally, something I highly recommend. I didn't work on the patent project, so I needed time to study the issue before I could write about it. And then Munich happened. And then I totally got it. Think about Munich. If there were an OSRM offering patent insurance in Germany, or several such, already in place, would they have felt they needed to shut down the Linux program while their lawyers investigate the patent threat or would they have had another option? Are you so naive you don't know Microsoft already knows about any patents it can try to use as a weapon?

If you have a better plan, come forward with it now. But there is no ignoring the patent issue. It's there, not because our side wants it to be, but because the intellectual property legal system is broken. It doesn't suit software. And we believe those with an agenda are heading our way. Or they were. What IBM, OSDL, Red Hat and OSRM have done has shifted the balance. I'm also ashamed of some of you. Next time, I suggest you get all the facts before you speak. And not from Forbes and trolls. Does Forbes ever get one thing right when it comes to Linux? How do some of you forget that each time and take their poison pen seriously?

Well, all right. We are all humans. We can't be perfect. Some people live and learn. Others just live. I hope those of you so willing to leap on those trying to help Linux survive will live and learn. And I am quite serious when I say that if you have a better strategy, step forward and share it. If you don't, don't tear down those who are doing their level best to fight on your behalf. Remember how a few of you blasted us for offering indemnification? And then yesterday, McBride said that the reason SCOsource didn't thrive was because third parties offered indemnification. We didn't just fall off a turnip truck, you know.

Finally, to all of you who wrote me messages of support and showed such loyalty, by far the majority, I truly thank you and I will never forget it.


  


IBM Pledges Not To Use Patents Against Linux | 459 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here
Authored by: caliboss on Wednesday, August 04 2004 @ 11:44 PM EDT
So PJ can find them fast.

---
Grok the Law / Rock the World

[ Reply to This | # ]

OT - Off Topic and URLS Here
Authored by: caliboss on Wednesday, August 04 2004 @ 11:45 PM EDT
So we can find them fast.

---
Grok the Law / Rock the World

[ Reply to This | # ]

IBM Pledges Not To Use Patents Against Linux
Authored by: chaz_paw on Wednesday, August 04 2004 @ 11:50 PM EDT
It will take me a while to digest it all, but I do believe, Pamela, you have
said a mouthful.

---
Proud SuSE 9.1 user since 07/26/04

Charles

[ Reply to This | # ]

IBM Pledges Not To Use Patents Against Linux
Authored by: Nick on Wednesday, August 04 2004 @ 11:51 PM EDT
"IBM has no intention of asserting its patent portfolio against the Linux
kernel, unless of course we are forced to defend ourselves"

Those are ominous words to those who might want to use patents against
Linux. With IBM in Linux's corner, and with IBM having one of the most vast
and deep patent portfolios in the universe, nobody goes into a patent fight
with IBM expecting to win. No, not even Microsoft which is decades behind
IBM in patent applications. So if IBM says they are willing to use their patent

arsenal for defensive reasons, anyone who wanted to use this strategy has to
think again now. Good for IBM...again.

And thank you, PJ, for your comments about the OSRM situation. Maybe now
everyone who wanted to talk about it can get it out of their system now and
we can move on.

[ Reply to This | # ]

IBM Pledges Not To Use Patents Against Linux
Authored by: jim Reiter on Wednesday, August 04 2004 @ 11:56 PM EDT
Am I the only one who wonders how many patent violations MS software contains?

[ Reply to This | # ]

Munich / Linux Patent
Authored by: bstadil on Thursday, August 05 2004 @ 12:19 AM EDT
I think PJ et al have misunderstod the situation in Munich. It's a political
powerplay to get the SW patent legislation derailed.
They are using Linux and the Munich situation to make the point that the
legislation is not encouraging innovation quite the contrary.

It's the strengt of Linux that makes this possible and as such should be
considered a good thing longer term

[ Reply to This | # ]

a patent fight with IBM ?
Authored by: Latesigner on Thursday, August 05 2004 @ 12:27 AM EDT
Not even Microsoft could be that stupid.

[ Reply to This | # ]

IBM Pledges Not To Use Patents Against Linux
Authored by: Anonymous on Thursday, August 05 2004 @ 12:28 AM EDT
I've been involved with software patents for a long time, although fortunately
rarely very deeply. Still, it's something that I've been considering for 15
years now. What I have been wrestling with is what makes software different
from other things? Why do software patents seem evil where hardware and process
patents seem like a good thing?

Because hardware, process, and other patents are good things. They really do
encourage and reward innovation. People spend billions of dollars designing new
widgets because they will be able to make billions more for a limited time.
Patents really do push innovation into the public domain -- otherwise many
innovations would remain trade secrets forever and we'd all be far the worse
off. People trying to find a way around patents actually do amazing new things
sometimes -- my 2004 Prius has an efficient Atkinson cycle engine partly because
Otto patented the obvious four-stroke back in the late 1800's and Atkinson
wanted to find a way around that.

So -- I will not entertain debate on the utility of traditional patents. What
makes software patents different?

The biggest and most important difference I can think of is that computers and
software allow for infinite inventability. All programmers love to create
things from scratch, they love to conjure new ways of doing things from the
whole cloth. Cyberspace allow the creation of new "things" in exactly
the way that brickspace doesn't, so things are getting invented by millions of
programmers all the time.

The second important difference is that until recently, the innovations that are
in programs were, for the most part, hidden. If somebody wanted to see how an
engine worked, you could easily take it apart and examine it -- disassembling a
computer program is a substantially more challenging task. Even understanding
documented source code is not particularly easy. So, millions of patentable
things are completely hidden from view, traps waiting to be sprung.

Still, neither of these issues really convince even me. I think that I mostly
hate software patents because I write software. I'd probably hate chemical
process patents if I was a chemist.

What makes software different?

thad

[ Reply to This | # ]

new buzzphrase for sale
Authored by: Anonymous on Thursday, August 05 2004 @ 12:32 AM EDT
Patents are Innovation.

[ Reply to This | # ]

Are you reading a little too much into this?
Authored by: Anonymous on Thursday, August 05 2004 @ 12:41 AM EDT
I have a lot of sympathy for PJ on the OSRM/patent/Forbes thing. I never had any doubt about this one.

I do wonder though about how much to read into this statement by PJ (and whether PJ is reading too much into it)

IBM has no intention of asserting its patent portfolio against the Linux kernel, unless of course we are forced to defend ourselves,

Look at that statement again:

1. IBM has no intention of using patents against Linux

2. Unless they are forced to defend themselves

There are a few things that I think noteable:

A. There is no sort of general statement about not using patents against anything other than Linux (and I guess you wouldn't expect IBM to use patents against Linux when they have built a multi-billion dollar per year business around it).

B. They seem to be saying that they do reserve the right to use patents against Linux, if they are forced to defend themselves. (Presumably if somebody involved in Linux attacks them first).

C. They didn't say that they would use patents against other companies who attack Linux (without directly attacking IBM)

I don't find A surprising. Do we expect MS to issue a press release saying "we won't use patents against Windows", or HP "we won't use patents against our laser printer division", etc. I know this is not quite the same as IBM don't own or control Linux outright - but the analogy is there - in that if IBM attack Linux with patents they are in part attacking their own business.

Point C seems like no change. I'm glad IBM is the protector in the SCO case, but they are not saying that they are providing a general shield in other cases.

Point B seems like no change, there isn't a hint of concession. In fact it sounds almost like IBM is explicitly saying that they reserve the right to pull the Linux temple down, if it suits them in the interests of self-defense.

Evil IBM? No, definitely not

Good IBM? Not quite good enough IMHO on this issue

Quatermass
IANAL IMHO etc

P.S.
Any body got IBM's reply memo on SCO's renewed motion to compel. Post a link if you have please

[ Reply to This | # ]

"Patent War Collapses USPTO"
Authored by: webster on Thursday, August 05 2004 @ 12:54 AM EDT
Imagine MS v. Munick, IBM et al. Hundreds of patents at issue. They are each
questioned and contested tooth and nail. It becomes apparent that many should
not be issued. It becomes apparent that USPTO acceptance and review means
nothing. Some of the patents must be reviewed for appropriateness. The patents
become worthless in court. The whole process comes under question. Experts
question the appropriateness of patenting software. The Judge looking at years
of litigation on the patents with no clear and convincing standard possible
dismisses much or all of it, insisting that the current USPTO system is
incapable of asisting the resolution of the problems. Nothing will expose a
sick system better than using it.

---
webster

[ Reply to This | # ]

Yeah, right
Authored by: Anonymous on Thursday, August 05 2004 @ 01:11 AM EDT
PJ:

You still refuse to discuss the possibility that insurance can attract lawsuits
instead of protect against them.

But, I suppose this will be deleted, too.

Shame on you for lacking the courage to discuss this.

[ Reply to This | # ]

IBM Pledges Not To Use Patents Against Linux
Authored by: Anonymous on Thursday, August 05 2004 @ 01:37 AM EDT
It seems to me that, by distributing linux under the GPL, IBM has implicitly agreed to license its patents to linux users. From paragraph 7 of the GPL:

For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

[ Reply to This | # ]

Open Letter to PJ (The paralegal that rocks)
Authored by: icebarron on Thursday, August 05 2004 @ 01:43 AM EDT
Madam,
I am now 45 years old and full of years in this tech business. I read this blog
on daily basis and as an addiction. I find it incredible that someone can have
as much dedication and fortitude to stand up under an onslaught of criticism,
and calmly write and answer that not only quells the debate but puts a hush over
the net briefly. You are a outstanding example of a journalist, and a formidable
opponent. God help me if I ever make you angry with me...(just joking). IBM is
and always has been a leader, Novell is on the rebound and coming on strong.
They both have stood up and have been counted. sco and m$ have been weighed in
the scales and found wanting. I look forward to the next few filings and its
total disection in this blog.
At least a couple of emails I expected to be released publicly finally made it
on the net. Now everyone is getting "THE BIG PICTURE", if not for the
likes of IBM,NOVELL,REDHAT,OSDL, and others we would not have had the priveledge
and downright fun to post these thoughts tonight...
Today I add your name to the list of patriots that I keep in my heart, many
have passed before you, only pray that there will be someone to take up the
torch afterwards. God bless you PJ, your an example to all of us who stand in
your shadow.

Peace to one and all

[ Reply to This | # ]

IBM Pledges Not To Use Patents Against Linux
Authored by: acebone on Thursday, August 05 2004 @ 02:22 AM EDT
>>contributing to it in a checks-and-balances manner

Non-english speaker here - what does 'checks-and-balances' mean ?

[ Reply to This | # ]

EU SW Patent directive
Authored by: Anonymous on Thursday, August 05 2004 @ 02:45 AM EDT
One comment on this:
In Europe we are not talking about SW-patent but computer implemented inventions
with reference to the technical apsect of the invention.

And that's the point, the definition of the technical aspect. The EU parliament
said that an invention must have effect on the forces of nature. The would
prevent silly patents like the infamous One-Click-Patent.

But the EU-Comission was persuaded by one or the other means to delete this
refence to the technique. Lets hope the Munich was somewhat of an wake-up call.

--
Just a little SW-Engineer from Europe fascinated by Groklaw with no clue about
lawyering.

[ Reply to This | # ]

IBM Pledges Not To Use Patents Against Linux
Authored by: jim Reiter on Thursday, August 05 2004 @ 02:49 AM EDT
Wouldn't any alleged damages IBM might be liable for, to
SCO, be limited to those damages that occurred before
Caldera (SCO) started selling Linux.

Regardless of what SCO says, Caldera's release of Linux had
to be under the GPL. If not the GPL, then by what right did
Caldera sell Linux? Caldera put Linux into play. IBM cannot
be guilty of violating trade secrets after Caldera put
those same trade secrets into the public domain.

[ Reply to This | # ]

IBM Lawsuits
Authored by: rand on Thursday, August 05 2004 @ 02:55 AM EDT
I've made at least a cursory Google search and can only come up with 5
references to lawsuits where IBM is listed as plaintiff, and none of those deal
with software.

On the other hand, the list is somewhat longer if one looks for software cases
where IBM is listed as defendant/counterclaim-plaintiff.

It really does look like Big Blue tries to keep out of court unless forced to
it. (Sounds like a winning business stragegy to me!)

---
carpe ductum -- "Grab the tape" (IANAL and so forth and so on)

[ Reply to This | # ]

IBM sees the light, Microsoft is blinded by it.
Authored by: kawabago on Thursday, August 05 2004 @ 03:06 AM EDT
Over the decades I've watched IBM create the PC. It's open architecture made it
a success. Then IBM tried to make it proprietary again but that didn't work.
Then they became an early victim of Gate's back stabbing with OS2 development.
So they muddled around for quite a few years before finally taking stock and
learning lessons from the past. Now they clearly see that open architectures,
open standards and open source provide huge efficiencies that benefit everyone.
It also enables rapid innovation by everyone being able to benefit from everyone
elses work. I believe they now see that this is the dawning of the real
computer revolution, once we are free from the yoke of Microsoft.

[ Reply to This | # ]

IBM/Novel winning the PR war hands down. HP tries to join in.
Authored by: Anonymous on Thursday, August 05 2004 @ 03:19 AM EDT
Look at these headlines:

"IBM pledges to not use patents".

"SCO head cackles 'Linux is mine, all mine'".

"HP announces first Linux Laptop".

"IBM donates databse code".

"Microsoft patents the double-click".

"SCO announces plans to auction out opportunity for programmers to sell
out".

"Sun says it can't make up its mind".

"HP say Microsoft wants to use patents to attack FOSS".

"Microsoft patents FAT filesystem".

"Novel donates YAST code to Open Source".

"SCO says all Linux users are liable".

Any software buyer or user reading all this is going to think - what exactly ?
Hmmm. "Which of these players seem to be on my side" ?

Actions speak much louder than words.

[ Reply to This | # ]

LiMux (The Munich Project)
Authored by: Anonymous on Thursday, August 05 2004 @ 03:22 AM EDT
It is my personal opinion (and of many others, if you follow the
heise-forum-threads), that the decision to suspend the LiMux-project was largely
political and not out of real fear on patent issues.

There is a strong controversy going on in Germany regarding the stance of the
government in the EU legislation process for software patents. There is even
dispute about this inside the political parties and inside the government
coalition.

The main desire of this announcement was (in my opinion) to put the patent issue
into the newspapers and have a broader discussion about it. So an OSDL-like
assurance would have been counterproductive in this case (though in principle
its a good thing) :-)

TToni

[ Reply to This | # ]

I missed the ruckus
Authored by: jbb on Thursday, August 05 2004 @ 03:34 AM EDT
Could someone please summarize or give a couple of links to the PJ,
Forbes, patent controversy.

I remember seeing a deep thread that started out with a criticism of
PJ, but it made no sense to me at all at all so it didn't stick.

I suggest that in the future we make another "sticky" thread for
criticisms of PJ. IMNSHO, the best place for it would be inside the
"Trolls" thread.

[ Reply to This | # ]

  • Short update - Authored by: Anonymous on Thursday, August 05 2004 @ 07:39 AM EDT
    • Thanks MadSci! - Authored by: jbb on Thursday, August 05 2004 @ 08:46 AM EDT
    • Short update - Authored by: Anonymous on Thursday, August 05 2004 @ 12:41 PM EDT
Thoughts about IBM ...
Authored by: Anonymous on Thursday, August 05 2004 @ 03:56 AM EDT
PJ, what makes you think that IBM are the "good guys" (if there even
is anything like that. Reality is seldom black and white)?

If I look at the wording of this statement I find it rather a threat than a
promise. No "intention" to use patents against Linux unless forced to?
Excuse me, but a real promise would be more like "We will never use our
patents to harm Free Open Source Software". Now *that* would be a bold and
assuring statement, but not the kind of doublespeak they put up in this press
release.

I remember this "intention"-thing all too well from lots of
politicians. If our (Germanys) finance minister says "We have no intention
to raise the VAT", this is almost a guarantee that it will happen a few
months later (I can prove that historically in at least three instances).

Talking about your intention is giving a picture about your current state of
mind, but it is *not* a promise.

To come back to IBM in general, they *do* have a history in creating and
maintaining a monopoly through unfair business practices, don't they? What makes
you think they will not try it again once Linux has 90% market share? Their
large patent portfolio might come in mighty handy at that time. Remember Hitler
and the Polands/Czech? To paraphrase it: "We have no intention of beginning
a war, but they shoot at us and so of course we are forced to shoot back".

Intentions are not promises!

TToni

[ Reply to This | # ]

IBM Pledges Not To Use Patents Against Linux
Authored by: TiddlyPom on Thursday, August 05 2004 @ 04:12 AM EDT
I'd like to make a personal apology to Pamela here and a public apology to you all. I wrote a brief comment on Linux.org about the Munich affair

----[ start of message on linux.org ]----

This is somewhat depressing reading but pretty much expected (despite the usual broad sweeping generalizations about Linux).

I have great respect for Pamela Jones (who runs the Groklaw site) but not for the Open Source Risk Management (OSRM) company who are helping to spread the FUD. IMHO they have effectively halted the implementation of a good reference site (Munich in Germany) by scaring the officials so much about lawsuits that they have put the conversion of PCs from Windows to Linux on hold indefinitely (although EU legislation on software patents does not help).

Microsoft could not have hoped for better propaganda!

Come on everyone, we need to convince the rest of the world (including big business and the education sector) that Linux rather than Windows is the way forward and things like this do not help.

----[ end of message on linux.org ]----

I take the point about getting my facts right and am quite prepared to put another posting on linux.org to correct this if it will help. I was (as you can gather) more concerned about the general state-of-affairs over Linux adoption rather than wanting to take a shot at OSRM and pretty p*ssed off over the fact that Munich's conversion to Linux had been made (effectively) into a Microsoft propaganda victory.

Bottom line, sorry everyone and I will make damned sure I don't spout my mouth off next time without asking the right questions first. *sniff*!

---
"There is no spoon?"
"Then you will see that it is not the spoon that bends, it is only yourself."

[ Reply to This | # ]

Who cares if software is different ...
Authored by: Anonymous on Thursday, August 05 2004 @ 04:23 AM EDT
... the real question is whether patents applied to software are doing the job
that patents are supposed to do.

Some clever pants is now claiming that linux infringes `285' patents. It beats
me how they can possibly come up with such a number, but lets just suppose this
is true. Just how many of those `infringements' do you suppose actually
represent `freeloading', in the sense of making use of the research of others
without paying a fair share of the research costs. Because that is what patents
are there for - to ensure that those who use the fruits of research pay a fair
share of its costs.

Yet I'd estimate (as a nice round number) approximately zero of those patents
represent such freeloading. In virtually all cases it is clear that the software
writer independently solved the problem and probably did not even know about the
work that is supposedly being infringed. That means what we are talking about is
not 285 examples of linux developers freeloading off the work of others, but 285
demonstrations of what is wrong with the patent system especially (but not
exclusively) as applied to software.

There is nothing wrong with linux. The same unfortunately cannot be said for the
US patent system which is totally stuffed.

[ Reply to This | # ]

IBM Pledges Not To Use Patents Against Linux
Authored by: Anonymous on Thursday, August 05 2004 @ 04:42 AM EDT
Kudos to IBM. First they defeated the onSCOloght from the diminutive and
dim-witted Darl, and now through out a challenge to M$ and William (the would be
conqueror). By inviting other companies to join them they have given Redmond a
headache. How to respond. Join IBM and give up their planned patent attack, or
look bad by not joining and confirming their intentions. I guess that Bill will
have a few sleepless nights before we hear from them, and I expect that they
will not give up their current plans. While IBM did not say they would defend
Linux, I guess that they would, and the IBM arsenal is far more formidable than
William's. This good news follows the IBM report of open sourceing their
database. One can only think that IBM is in the Linux corner, joined by the
likes of Novell. Maybe, just maybe, Linux may not look so helpless to the folks
near Seattle. Thank you, IBM.

[ Reply to This | # ]

now now
Authored by: Anonymous on Thursday, August 05 2004 @ 04:59 AM EDT
i know it must be a tough job and very hard for you to keep a cool head, pj
(and thanks that you are doing it!). however, you probably overshot with this:

"And then yesterday, McBride said that the reason SCOsource didn't thrive
was because third parties offered indemnification. We didn't just fall off a
turnip truck, you know."

taking darls word for facts? the same man, who one minute earlier said, they
will win the court cases? please!

i agree fully, that ms patents are a very, very serious thread. and yes, ibm,
redhat, osrm and the german green pary are playing it well (show the issue
publicly, then suggest ways out). but to believe that the sco licencing didn't
start because of the indemnification? i laugh in that general direction! their
'licence' for 'intellectual property in binary form' was a joke. see what
happened to the unlucky few, who took such a licence? see, how quickly they were
shot down?
this never was a serious thread. but patents are. so, please don't throw them
into one bowl so lightly.

[ Reply to This | # ]

  • now now - Authored by: PJ on Thursday, August 05 2004 @ 06:39 AM EDT
    • now now - Authored by: Anonymous on Thursday, August 05 2004 @ 07:27 AM EDT
      • correction - Authored by: Anonymous on Thursday, August 05 2004 @ 07:39 AM EDT
Patents and Risk
Authored by: PeteS on Thursday, August 05 2004 @ 05:08 AM EDT
PJ wrote, in part:

<< But there is no ignoring the patent issue. It's there, not because our
side wants it to be, but because the intellectual property legal system is
broken. It doesn't suit software. And we believe those with an agenda are
heading our way >>

It's a fact. I am primarily a hardware designer (although I have done quite a
lot of software in my time), and I actually have patents with my name on them. I
have seen it morph into what it is today. One of the faults, oddly enough is we
hardware types.

Many years ago, we started using field programmable parts (known by many names,
most usually FPGAs and CPLDs, but there are others), and patents started to get
issued for a specific configuration of an FPGA that replaced the equivalent
hardware.

I was always somewhat uncomfortable with this, as FPGA configuration is far
closer to software than hardware (the hardware specifics relate to things like
timing constraints, drive levels and such). The rest relates to functionality.
The problem with this is simple : the functionaity you can get is limited only
by what you can conceive - sound familiar?
You don't (importantly!) need to change your physical circuitry to get this new
behaviour either.
That's an issue - the patent system was set up, in part, because of the expense
of 'original inventions' and the building of them. Software and FPGA
implementation patents require no more 'physical' investment than a decent
system and a compiler.

From this, it's a short step to patenting software, because in reality, that
processor you are coding for is really just a grab bag of configurable logic -
the instructions you write simply re-configure it to be what you require now.
Not really any different from that FPGA ( and in system programming - on the fly
- of FPGAs is old hat)

Now it's an adder - a standard piece of logic hardware, btw, next it's a barrel
shifter. It's really no different from that FPGA, except that the programming of
the logic of the processor happens cycle to cycle.

On the subject of OSRM, I have been silent for a simple reason - it just seemed
to make sense. For those who are simply coders, this may seem 'unnatural', but
in reality, it is a strictly business decision.

Business routinely buys insurance of all sorts - indeed, your local hospital
requires all it's nursing staff to hold malpractice insurance. That's not
because the hospital truly believes it's staff is incompetent, but because
malpractice is a legal minefield. It is simply protecting itself against the
known issues.

Likewise, OSRM provides a product that compamies may choose to buy (or not, of
course) simply so *they* do not have to be worried about the excesses of the
patent and copyright system. It is, as I said, a business decision, and for a
company that may have literally thousands of servers running Linux, it's a tiny
cost for a lot of effective peace of mind.

Just my $0.02

PeteS


---
Today's subliminal thought is:

[ Reply to This | # ]

...unless of course we are forced to defend ourselves
Authored by: Galik on Thursday, August 05 2004 @ 05:21 AM EDT
This is a concern. Are they saying that if (for example) Red Hat were to end up
in some kind of legal dispute with IBM then IBM would then be happy to use
patents against Linux? Don't forget SCO did not bring a patent suit against IBM.
Yet IBM attacked back using patents without blinking. IBM does not here offer to
defend Linux patents but reserves the right to contest Linux code in a court of
law for patent infringement if it comes down to a legal confrontation with a
company that is Linux based. Don't get me wrong. It is nice to know that IBM is
not seeking to use patents against Linux. But frankely no one expected them to,
given their own business interest in the operating system. I see nothing
extrordinary that was not taken as a given in what IBM said. Now if they had
said they would actively fight to defend any patent aligtions against Linux.
That would be note-worthy.

[ Reply to This | # ]

Has anybody considered that Germany is pulling a PR stunt?
Authored by: Anonymous on Thursday, August 05 2004 @ 05:44 AM EDT
I'm surprised nobody has considered that Munich may be making a poltical
statement to other countries that are considering voting in favor of software
patents.

Munich has just made a very clear statement. The statement is, "if we
adopt software patents, you'll be locking yourself into using Microsoft as a
result".

I think PJ is missing this. What better argument can there be against software
patents in Europe? How could there have been a more bold statement than this?
Do European countries feel comfortable entrusting all their computers to
Microsoft? That would be the end result of patents were truly enforced. Think
Europe can afford to do that?

[ Reply to This | # ]

IBM Pledges Not To Use Patents Against Linux
Authored by: Anonymous on Thursday, August 05 2004 @ 06:25 AM EDT
Microsoft, Cisco, Ebay, and Intel have called for reforms to the US Patent
system.

IBM has been noticably silent about the subject.

Reform would be better for US than insurance, and I think that Munich is trying
to make that point.

http://news.earthweb.com/bus-news/article.php/3341821

[ Reply to This | # ]

IBM Pledges Not To Use Patents Against Linux
Authored by: Anonymous on Thursday, August 05 2004 @ 06:29 AM EDT
Are these 10 or so non-elected people dumb enough to sell down their entire
content for some silver from Microsoft? I have my doubts because it's truly
traitorous.

I mean, even in a system that isn't the LEAST bit democratic, it wouldn't
happen. Would the USSR have allowed themselves to be locked into an American
company? Would Japan? Would China? Even for LOTS of money?

I think these people were thinking "who cares? It won't really change
anything - and besides $$$$$$!" Now I doubt they are. I could be wrong of
course, but I rather doubt it.

Something else to consider is that the only company that wants to see Linux dead
is Microsoft. Don't underestimate the power of that. Also don't underestimate
that companies that have worked with MS in the past have often been burned later
on. MS could (and will) do things like refuse to let their OS run on any system
without Palladium in it, and then force HW manufacturers to build to specs.
They could play favorites where MS sofware works REALLY WELL on Intel HW, and
terrible on AMD HW, by just detecting which chip the OS is running on and alter
behavior as a result. Microsoft has pulled similar stunts before.

Who is in Microsoft's corner of the ring?

I think what is starting to shape up is Microsoft vs. world + their dog.

[ Reply to This | # ]

Politics matter especially in Europe
Authored by: TiddlyPom on Thursday, August 05 2004 @ 06:31 AM EDT
The problem is that the political climate is different in Europe.

Politicians are starting to realise the ramifications of open source in terms of of things like law enforcement, digital rights management, voice-over-internet especially with respect to the David Blunketts (UK) of this world.

He would undoubtedly prefer a "trusted computing" future controlled by Microsoft and governments as opposed to a free Linux world controlled by users. Closed source is easier to understand and control.

If you were procuring some new PCs and someone said

"You can have Microsoft Windows on these and pay a fixed licence fee or have Linux for free but risk millions of Euros of litigation but we will probably be able to insure you against that..."

what would you pick?

I'm not saying that insurance is not a valid option but it is the impression of continued danger that is the problem.

I see this as part of a long term propaganda war that we *have* to win if we want to prevent PCs from becoming turnkey devices controlled by large organizations/governments (pretty much like games consoles are now). I would rather they stayed as the useful and flexible empowerment tools they are at the moment. If Microsoft carries on down this route then Linux really is the only O/S of the future (IMHO).

---
"There is no spoon?"
"Then you will see that it is not the spoon that bends, it is only yourself."

[ Reply to This | # ]

IBM Pledges Not To Use Patents Against Linux
Authored by: Anonymous on Thursday, August 05 2004 @ 07:04 AM EDT
In my humble opinion, and it is humble... are we perhaps
so used to being attacked that we cannot see an ally (IBM)
trying to help?

IBM's statement would have been formulated by its own
legal team to be as protective to it's own interest - true
- but IBM realises now it can achieve a hell of a lot more
business by helping F/OSS then opposing it.

F/OSS gives IBM the ability to compete on all levels, and
IBM gives F/OSS the ability to be seen and heard...

[ Reply to This | # ]

Looks like I'm Recommending IBM Again
Authored by: Anonymous on Thursday, August 05 2004 @ 07:37 AM EDT
I stopped recommending in the 80s because I had seen them abusing their monopoly
position. They were the Microsoft of their day (or rather, Microsoft is the IBM
of old today!)

But in the last 7 years IBM has re-invented itself - remarkably - in a very
positive manner. Frankly, I am gob-smacked but delighted. Again, I shall be
recommending IBM and SUSE to my clients as the platform of choice.

I must admit - IBM are probably the most amazing company I have seen in the
modern era. Their R&D spending is awesome (as are the number of Nobel prize
winners working for them) - just think tunneling microscope - and their business
focus is second to none. Something to note - IBM have become a better (indeed,
almost the perfect) corporate citizen since they "lost" their monopoly
- perhaps this will be the fate of MS one day?

Anyway - I am delighted at the news (surprised like anything, but delighted!)
Again, I will be supporting and recommending IBM to my corporate clients.

Thanks

SPB

[ Reply to This | # ]

This can actually help IBMM gain sales
Authored by: PeteS on Thursday, August 05 2004 @ 07:44 AM EDT
Look carefully at the quote '...unless we are forced to defend ourselves'

Let's think about it:

City X wants to use Linux but is concerned about the patent issues - but IBM has
said it will only use it's patent portfolio 'if it has to defend itself'

Hmmm

Let's buy those servers and desktops through IBM. If there's a suit, we can get
IBM added as a party. Now let's watch the countersuit(s) with IBM claiming
patent infringement against the plaintiff(s).

Just a thought - might be interesting fodder for discussion.

Pete S



---
Today's subliminal thought is:

[ Reply to This | # ]

cost of free software
Authored by: winkey on Thursday, August 05 2004 @ 07:46 AM EDT

I have seen over and over in this thread about the cost of softaware being
nothing, but i have to disagree. I spent the last 3 years working on a project
just for fun and learning. the cost was not free, I lost income and it affected
my personal life.

If IBM develops an open source application, they still have to pay there
programmers. This stuff is not written instantly.

that being said, software patents are bad. Freedom of information is a good
thing.

[ Reply to This | # ]

IBM Pledges Not To Use Patents Against Linux
Authored by: pfusco on Thursday, August 05 2004 @ 07:47 AM EDT
Way to go Big Blue!! As Richard Stallman said a while ago (I believe it was him) Allies... Allies... Allies, not puppets are what win wars. Hmmm might have paraphrased that a littel or alot depending on how much you guys remember ;)

PJ this was an excellent read and I know it will take some time to sink in / digest/ grok it all.

M$ knows that it is pretty much screwed at this point I think.

---
only the soul matters in the end

[ Reply to This | # ]

IBM Pledges- "Dirty Harry " factor
Authored by: Anonymous on Thursday, August 05 2004 @ 07:53 AM EDT
It strikes me that folks are missing a point or two here.

The way patent portfolio's are used in something like the automotive or
xerographic business worlds is to horse trade licenses. The picture is much
bigger but the essence is Xerox uses a Kodak patented photoreceptor but trades
the right with Kodak who is using a Xerox patented sensor. IBM is putting up
their portfolio as trading material for the Linux kernel. If someone wants to
enforce a patent they will have to trade against IBM's portfolio.

The real "fun" though is that this is the "gun". Given what
we have seen with the SCO lawsuites I think IBM just did a "make my day
punk" move on Gates&Co. If Microsoft starts a patent war with Linux
they may find their source code being gone over by the Nazgul. How does that
sound? That could make the battles so far look like dropping a nuke into a
water fight. I really don't think Gates will be dumb enough to go there. But I
have been wrong before. ;-)

[ Reply to This | # ]

Linux Laptop
Authored by: pfusco on Thursday, August 05 2004 @ 08:05 AM EDT
If you are looking for a good laptop check out Sager. They make high quality laptops, pretty inexpensive as well AND they offer it with M$ operating systems and Linux... they will also sell them with NO Operating Sytem preinstalled.

http://www.pcsonic.com/?OVRAW=sager%20laptops&OVKEY=sager% 20laptop&OVMTC=standard

---
only the soul matters in the end

[ Reply to This | # ]

IBM and Patent Use
Authored by: Anonymous on Thursday, August 05 2004 @ 08:11 AM EDT
While not as public or as specific, a similar statement was made at the ACM ICPC
2004 World Finals (http://icpc.baylor.edu/icpc/), which IBM sponsors. During a
question session their rep was challenged regarding IBM's support for software
patents in the EU. The response (while completely unrelated to the question) was
a similiar comment that IBM uses patents only as a defensive measure.

[ Reply to This | # ]

PJ, wrong assumption
Authored by: shareme on Thursday, August 05 2004 @ 08:13 AM EDT
Please do not assume that IBM's definition of attack is FreeSource's and
PoenSource's definition of attack...


A Pledge to never use Patents against anyone using or contributing to Linux is
far different than what IBM said..

IBM like most companie sincluding SUn considers declining revenue and profits as
an attack.. the start of IBM's patent strategy started right after its anittrust
case and subsquent delcine in both profits and revenue..

So let us not jump to wrong conclusions..



---
Sharing and thinking is only a crime in those societies where freedom doesn't
exist.

[ Reply to This | # ]

IBM Pledges Not To Use Patents Against Linux
Authored by: Anonymous on Thursday, August 05 2004 @ 08:35 AM EDT
Yes, it's probably for the best to take on this issue directly. Get it out in
the open and talk about it. Write congress, all that.

But the PR better keep coming and it best be framed a little better. Several
co-workers latched onto only the headlines and now believe Linux is doomed
because it infringes on hundreds of patents. We can shrug that off as shallow
research on their part, but never the less it was a step back and hopefully it
will lead to two steps forward.

Keep up the good work. I don't mind when folks stir up the coals. It just kinda
caught be by suprise this time.

[ Reply to This | # ]

    doublespeak ?
    Authored by: Anonymous on Thursday, August 05 2004 @ 09:22 AM EDT
    Am I the only one who noticed the disturbing lack of standards on source
    competence? Don't trust anything Forbes 'poison pen ' writes, but just below,
    when Darl mentions OSRM in a positive light, we should it as gospel? To
    refresh:

    -----------------------------------------------------------
    I'm also ashamed of some of you. Next time, I suggest you get all the facts
    before you speak. And not from Forbes and trolls. Does Forbes ever get one thing
    right when it comes to Linux? How do some of you forget that each time and take
    their poison pen seriously?

    ...
    Remember how a few of you blasted us for offering indemnification? And then
    yesterday, McBride said that the reason SCOsource didn't thrive was because
    third parties offered indemnification. We didn't just fall off a turnip truck,
    you know.
    ---------------------------------------------------------

    Now, I've got no opinion one way or the other about the Munich deal. I don't
    know enough about German politics for that. And though insurance companies are
    right up there with lawyers and doctors in my esteem (or perhaps I should say
    _down_ there), I think OSRM is probably performing a much needed service to
    protect from the lawyer parasites.

    But the day I start taking Darl's word as gospel, _is_ the day I 'just fell of
    the turnip truck'.

    [ Reply to This | # ]

    IBM:Clarify: "forced to defend ourselves"
    Authored by: Anonymous on Thursday, August 05 2004 @ 09:34 AM EDT
    This can be taken two basic ways.

    1) IBM defends itself from Linux code that infringes and hrts the company
    (unlikely)

    2) IBM has taken Linux under its wing and sees any attack against Linux is an
    attack against IBM. Therefore any attack against Linux will bring the full force
    of big blue down upon you.

    I'd like to know if IBM plans to proactively defend Linux, such as if someone
    else gets sued for features in Linux or only if the litigation is targeted at
    IBM specifically.

    Of course if it is the former, MS dare not fire a salvo. What IBM will have done
    is create a patent stalemate, or MAD if anyone is dumb enough to go that far.

    With IBM transitioning all to Linux I don't think it is far fetched at all.

    Can someone back up by belif that IBM is transitioning to all-Linux/no-AIX?

    [ Reply to This | # ]

    Linux Buyers Pledge
    Authored by: Anonymous on Thursday, August 05 2004 @ 09:56 AM EDT
    IBM has no intention of asserting its patent portfolio against the Linux kernel Well well well... compare that to HP's fence-straddling position. We've been a Dell and HP/Compaq buyer (mostly Compaq until merger and then started picking up Dell systems after constant battles with Compaq laptops baking the processors to death over 1-2 years on various laptop models - back in the Compaq Armada line, we'd never see a laptop make it past 24 months). Why we avoided Dell was probably more an issue of culture and Compaq preference than anything.

    HP's strategy of playing both sides was the last straw for me this year and they got put on my vendor ban list (you can't imagine how puzzled their sales folk are when you explain that a strategic position affects why you won't buy their equipment, and are even more confused when you tell them to go to something called Groklaw to understand!). It's annoying on the printer side certainly, but we've made up for it in laptop reliability.

    Since IBM wants to take some leadership here, I think they ought to see a bump in the market because of it. It seems like it is time to vote with our feet a bit and buy IBM. Since I haven't followed IBM's product lines since 1997-1998 with Thinkpads, any comments on real winner products vs. things that should be avoided?

    [ Reply to This | # ]

    What this is really about
    Authored by: Anonymous on Thursday, August 05 2004 @ 10:10 AM EDT
    This statement by Nick Donofrio is not about what IBM will or will not do. It's
    about trying to move other industry players in the Linux-supporting direction.

    What Nick said is blindingly obvious to the most casual observer. IBM will not
    use its patents "against Linux" unless "forced to defend
    itself". Wow, there's a shocker, huh?

    What's REALLY going on is that the Linux movement is being slowed down by
    concerns about patent suits. So, IBM is trying to get as many industry players
    as possible to declare "no offensive use of patents against Linux
    customers", thus making customers feel "safer" about Linux.

    A secondary goal is to make it clear that Microsoft is NOT making this
    statement, to try to sustain the open-source pressure on Microsoft's business.

    BTW, Nick is not a "line executive" at IBM -- better to think of him
    as the chief technologist and technology strategist.

    OK? all clear, people? You may now return to your regular jobs.

    PS -- disclaimer -- I work for IBM but I don't have anything to do with IP,
    patents, or Linux at IBM. However I've been around for a while and know how
    things work.

    [ Reply to This | # ]

    IBM Pledges Not To Use Patents Against Linux
    Authored by: 106ja on Thursday, August 05 2004 @ 10:33 AM EDT
    IMHO the only way out is to make clean room and recode, if possible, patended
    issues if not prepare to live without some functionality.

    Why insurence is not good idea? It doe's not make ME free. It doe's not make
    FOSS programmer free. Show me FOSS programer that could pay 150000 bucks to
    sleep easy. It makes free only big busines. Is Linux just for big busines? But
    MS will never sue some small guy. I do not agree. If Linux take, let say 15% of
    desktop. MS will sue my dead grandmother if it is the way to stop it. It looks
    to me that there's so many people that want to make money on FOSS (and I have no
    problems with this) that we forget what FOSS is all about: freedom to make a
    choice, freedom to be creative, freedom to build with the others for the others;
    freedom 'tout court'. Patent issue is not about, will MS slow down or even stop
    Linux spreading. It's about limmiting heavily my freedom to use software I want.
    If my freedom costs me 150 000$ I have no choice, I have no 150 000$ to be free.


    My first thought about Munich was: IBM and Novel(suse) now have to show what are
    made of, and indemnify Munich city hall. Whay this is not good idea? First, if
    this is really Munich way to fight patent laws in Europe, they loose the point.
    With good indemnification you are OK so no need to change patent law, and you
    have one busines more. Not only lawyers will profit from new law. Second, that
    puts out of the game all other distros. I do not think that UserLinux could
    indemnify anybody, ao as busines distre it's dead.

    Why IBM pledge doesn't mean so much IMHO. Company is as good as the people on
    the head of the company. Immagine world with JBoss that holds 90% of java
    servers market and there is some bizzare IBM patent inside. Immagine new IBM CIO
    decides that Linux is better served with some new IBM licence. Could you sue IBM
    without having counter sued for 55 patents and so on. The only way that IBM
    could assure me that they are serious in protecting Linux from patents is: TO
    TRASFERT IBM PATENTS that linux kernel potenially infinge to ODSL or somebody
    like that. If they add some that Windows potentially infringe they are really
    whit knight. Just now, IBM pledge is good will showing, but nothing more.

    Red HAt iniciative. Beutyful one, but I'm afraid so hard to defend. In this
    world, if you publish some code in USA it is not limited to USA. Anybody could
    see it: Libya someone, China, Iran etc. MS will lobby that they closed code is
    closed not becuse of american or europian companies, but cause of the rest of
    the world that did not respect IP or does not have copyright laws.

    Finally, about PJ being ashamed of some of us: well it is her feeling and have
    no way to change that. Now, all facts presented, I'm more then ever convinced
    that:

    OSRM made big mistake by publishing the PR the way they did and in the time they
    did. (Just see SCOX stock price)

    OSRM made big mistake by not publishing just their possition pdf. (and hefty
    inssurence price after few days)

    Selling insurences is not the way the OS community have to go.

    I have nothing to be ashamed. By participating in this discussion I did not
    attack anybody (aspecially not PJ). I appolgise if I missunderstood something or
    somebody. I am little bit offended by a fact that Forbes is assumed as a source
    of informations. The only source I used were OSRM documents and other people
    posts. I admit, there were lot of trolls in this discussion. They have their
    day. But were lot of people now sees busines, I still search for freedom.

    ---
    Don't judge me by my english. My native langue have no X's or Y'es

    [ Reply to This | # ]

    IBM Pledges Not To Use Patents Against Linux
    Authored by: Anonymous on Thursday, August 05 2004 @ 10:36 AM EDT
    PJ may have missed something, unusual as that is. By treaty, the U.S. has to
    observe patents awarded by other countries. That means that software patents
    awarded in any country that we have significant IP treaties with will still be
    used to stifle competition in the U.S. Fixing the patent system in the U.S. is
    a great first step, if we ever take it, but it won't be sufficient to protect
    Linux and other inovation-dependent enterprises. For that we'll need reform in
    all the countries that have been embracing software patents.

    [ Reply to This | # ]

    • Catch up - Authored by: Anonymous on Friday, August 06 2004 @ 01:56 AM EDT
    What about the rest of FOSS???
    Authored by: Anonymous on Thursday, August 05 2004 @ 10:36 AM EDT
    "IBM has no intention of using patents against the Linux kernel"

    Well, that doesn't help the FSF, GNOME, KDE, Apache, MySQL (IBM must have a
    zillion database patents), etc, etc, etc

    [ Reply to This | # ]

    "Gaming the Copyright system"
    Authored by: tz on Thursday, August 05 2004 @ 10:57 AM EDT
    This is something to be careful with.

    There is Copyright, which there isn't that much wrong with.

    The LICENSES that restrict things beyond copyright are a problem. But even the
    GPL is a license, so we have to not pull up the wheat with the tares.

    Generally, the best law would invalidate copyright (federal criminal and civil
    force) for any license MORE restrictive than copyright (with the normal fair use
    provisions and fair licensing like the old piano roll problem was resolved).

    Either or. You either do Copyright, get the standard set of restrictions (first
    copy), and get the full weight of the law, or you have to do things with valid
    contracts - yes, take your new computer to a notary public with the license,
    sign, send one copy to the vendor, and keep one...

    If every author (even beyond software) wants a different set of restrictions -
    DRM v.s. open v.s. paper media only - then there is no reason to HAVE a
    copyright law. It would be a standard that no one uses. (Yes, I know it could
    be used to build upon, but at some point the structures become so complex there
    is nothing left of controversy at the foundation).

    [ Reply to This | # ]

    WE LOVE YOU PAMELA!
    Authored by: Anonymous on Thursday, August 05 2004 @ 11:06 AM EDT
    I head up a linux user group down here in Atlanta Georgia. I got a call at
    10:30am saying that you've defended yourself against what forbes and their
    dumbness had to say, I had to wake up and read it so I could get a better
    understanding on what is happening. (long story on why I was still sleep at
    10:30... PARTY!!!)

    You guys ARE trying to helpout as much as you can, in anyway you can, in order
    to let this machine called linux run smoothly. As for OSRM, I really wish they
    didn't come out and blab it out the way they did and then say we're not telling
    anybody about what patents are offensive (although I do understand why not and
    thank them for that too).

    From all 26 of us... WE LOVE YOU PAMELA! Ok, sorry for the cheesie'ness. We do
    appreciate what you're doing for the FOSS communities, all accross the globe...
    keep up the good work and screw their naive, unilateral opinions and comments.

    [ Reply to This | # ]

    "Gaming the Copyright system"
    Authored by: tz on Thursday, August 05 2004 @ 11:07 AM EDT
    This is something to be careful with.

    There is Copyright, which there isn't that much wrong with.

    The LICENSES that restrict things beyond copyright are a problem. But even the
    GPL is a license, so we have to not pull up the wheat with the tares.

    Generally, the best law would invalidate copyright (federal criminal and civil
    force) for any license MORE restrictive than copyright (with the normal fair use
    provisions and fair licensing like the old piano roll problem was resolved).

    Either or. You either do Copyright, get the standard set of restrictions (first
    copy), and get the full weight of the law, or you have to do things with valid
    contracts - yes, take your new computer to a notary public with the license,
    sign, send one copy to the vendor, and keep one...

    If every author (even beyond software) wants a different set of restrictions -
    DRM v.s. open v.s. paper media only - then there is no reason to HAVE a
    copyright law. It would be a standard that no one uses. (Yes, I know it could
    be used to build upon, but at some point the structures become so complex there
    is nothing left of controversy at the foundation).

    [ Reply to This | # ]

    A different (maybe not better) plan
    Authored by: Anonymous on Thursday, August 05 2004 @ 11:25 AM EDT
    I happen to be one of those people who is not convinced
    that the solution that OSRM is offering is helpful to
    F/OSS. Not agreeing with OSRM's business plan, and by
    extension yours, is not shameful. People sharing a
    different opinion than yours, and coming to different
    conclusions based on their grasp of certain facts, does
    not mean both sets of conclusions are wrong. It is
    however, presumptuous to assume that I don't have a grasp
    on any facts, or that all facts lead to the same
    conclusion. Believe it or not, disagreeing with you does
    not automatically make someone a troll. What makes
    someone a troll is when they do it solely to inflame or as
    a personal attack.

    I am not sure what "rest of the story" you are alluding
    to. If you are attributing SCOsource's failure due to
    third parties offering indemnification to OSRM, I
    respectfully disagree. The only party that I know of that
    have been offering indemnification is HP. I wouldn't call
    what Red Hat offers indemnification. I highly doubt that
    when the 1500 extortion letters went out to previous or
    current SCO customers that SCO backed off because OSRM had
    sold those corporations indemnification policies. I
    believe it has more to do with SCO's behavior and the
    industry reaction to the lawsuits. To attribute SCO
    backing down on SCOSource to OSRM is ludicrous unless
    someone can fill me in with additional facts.

    And yes, I do have ideas for a different plan. I don't
    know if the plan would work or not and I don't claim it is
    the perfect plan. The plan is based on what I believe has
    worked well for the F/OSS community - a combination of
    what you have done here with groklaw and the successful
    example of OSDL.

    Linux is, and will continue to be, a target only when it
    threatens the bottom line of corporations like SCO, Sun,
    and Microsoft. The good thing is that other corporations
    have embraced disruptive change, and discovered that money
    can be made from the F/OSS model. Corporations like IBM,
    HP, Red Hat, and Novell. As long as linux has value to
    them, they have a vested interest in its success. Linux
    is doing what the justice department failed to do - market
    correction in the software industry. They also happen to
    have the financial, legal, and political resources to make
    a considerable difference.

    What I propose is to take advantage of this bizarre
    alignment of the planets - big business and F/OSS. The
    OSDL model is a perfect example. My proposal addresses
    the short, mid, and long term goals of business and F/OSS.
    First of all, it should be a non-profit entity like OSDL.
    The board membership should be structured to include
    representatives from corporate and F/OSS interests. For
    examples IBM, Red Hat, Fujitsu, HP, Nortel, EFF, FSF,
    pubpat.org, ISC, Apache Foundation, etc...

    The short term problem of the patent threat should be
    addressed by some sort of patent trust or patent bank. I
    have no idea how to implement this - some sort of license
    or outright donation. If corporations are making money
    off of F/OSS, give them another way to contribute back.
    This would give IBM the perfect opportunity to formalize
    their recent statements about not using patents against
    linux. The short term goal is to fight fire with fire,
    create a patent bank that can be used to dissuade players
    like microsoft from attacking. The current rules of the
    game won't change soon enough to stave off attacks, so if
    you can't beat them, join them. Beat them at their own
    game. Imagine if you will, projects like Apache, projects
    owned by the ISC (bind, dhcp), sendmail, kde, and gnome
    all having their code combed through for patents.
    Certainly the F/OSS community has been creative enough
    over the last 20 years to have some patentable ideas? The
    ultimate goal in the short term is to stave off immediate
    patent attacks.

    In the mid term emulate the success of the groklaw
    phenomenon. Apply the model to the creation of a prior
    art database, to legal research, create a focal point to
    rally the troops and whack the fud. Here is another idea
    for the mid term. The ultimate goal in the mid term is to
    render software patents useless by basically a legal DOS
    attack. Imagine a scenario where this body can apply the
    same attack to microsoft. Claim microsoft is violating
    patents held by a industry coalition and take a SCO dive
    at their source code. Expose the fact that proprietary
    code may be full of patent infringement as well.

    The long term goal is to change the laws. Once there is
    no financial gain from software patents because they have
    been rendered useless by the patent bank WMD and prior art
    database, it is time to start lobbying for changes in the
    law.

    Problems? Heck yeah there are problems, lots of them.
    Would IBM extend loyalty to F/OSS projects other than the
    kernel? What kind of license for the patents, GPL -vs-
    BSD models? What if one member of the consortium decides
    to go after another? Is this idea even legal? Can we
    "all get along"? What happens when microsoft quits being
    a monopoly and all financial motivation to cooperate goes
    away? Will it work against the leeches that have only
    patents and no products? Are all software patents a bad
    idea?

    I wouldn't have believed any of this possible before OSDL
    and the SCO lawsuits.

    Thats my story and I am sticking to it.

    [ Reply to This | # ]

    OSRM bad PR?
    Authored by: Anonymous on Thursday, August 05 2004 @ 02:00 PM EDT
    I think calling OSRM "an legal insurance policy" is a bad
    PR. To someone who hasn't bothered to look at it in
    detail, it sounds on the face of it awfully like what a
    certain Darl McBride was trying to do: trying to run a
    protection racket under threat of a lawsuit. Also some
    seem to think the name "Open Source Risk Management"
    suggests that there is a risk in Linux.

    The only thing wrong with OSRM is the name. Perhaps it
    would have been better to call it a "Linux legal
    defence management" or something like that.

    [ Reply to This | # ]

    That's no pledge
    Authored by: Anonymous on Thursday, August 05 2004 @ 02:06 PM EDT
    The words quoted pledge nothing at all. What IBM may plan or intend right now
    does nothing to stop them taking a different course of action sometime in the
    future.

    I'm not saying I expect them to attack. Just that the option is just as open to
    them today as it was yesterday. And if SCO can have a radical change of
    management, so in principle can AN Other.

    [ Reply to This | # ]

    IBM's Patent Decision: DiDio has the real motivation
    Authored by: Anonymous on Thursday, August 05 2004 @ 02:30 PM EDT
    You might have mistakenly thought that IBM has announced their non-aggression pact because it believes in Linux, because it wants to defuse the FUD about IP and open source, or because it wants to force Microsoft's hand.

    Silly you. Laura DiDio has worked out the true story, and she's told eCommerce Times so that they can tell us all:

    ----------------------------

    There are other reasons for IBM's nonenforcement announcement, Yankee Group analyst Laura DiDio told The E-Commerce Times. For one thing, it's already spending a lot of time in court.

    "With SCO and other suits, IBM has its hands full," she said. "They don't need to add to their lawsuit load right now."

    ---------------------------

    So there we have it. SCO's fearsome legal challenge has saturated IBM's under-resourced, under-manned paltry collection of lawyers. Good time to rip Big Blue off, I reckon - why don't you try it, DiDi, and see how full IBM's hands really are?

    R

    [ Reply to This | # ]

    If there was OSRM...
    Authored by: Anonymous on Thursday, August 05 2004 @ 02:40 PM EDT
    <blockquote> Think about Munich. If there were an OSRM offering patent
    insurance in Germany, or several such, already in place, would they have felt
    they needed to shut down the Linux program while their lawyers investigate the
    patent threat or would they have had another option?</blockquote>

    There's no similar insurance for commercial products.

    This whole OSRM buzz is to scare people then ask money to protect. SCO tried the
    same. This is NOT the way to go.

    [ Reply to This | # ]

    IBM Pledges Not To Use Patents Against Linux
    Authored by: Anonymous on Thursday, August 05 2004 @ 03:29 PM EDT
    Great news -- but I've been hoping for more. I'd been hoping for IBM to grant a
    license for many patents that it owns, licensed freely to any software licenced
    and distributed under the GPL.

    THAT would be a coup. This doesn't really promise anything more than we already
    knew, although it IS a good statement for IBM's purposes and shows that they DO
    know their business.

    -Billy

    [ Reply to This | # ]

    IBM Pledges Not To Use Patents Against Linux
    Authored by: Anonymous on Thursday, August 05 2004 @ 05:42 PM EDT
    Has anyone seen ...

    http://www.forbes.com/business/2004/08/04/cz_dl_0804sco.html

    [ Reply to This | # ]

    A verbal contract is worth the paper it is written on...
    Authored by: farhill on Thursday, August 05 2004 @ 06:03 PM EDT
    While this is a nice statement, and perhaps represents IBMs current position, it
    doesn't mean anything in the long term. Some of us remember a Linux company
    called Caldera, who were steadfast in their support of open source and open
    standards. Then they got new management, a new name, and a new ideas of how to
    "enhance shareholder value".

    If a few years down the road, IBM isn't doing so well, and they see a patent
    goldmine in linux, nothing is to stop them from doing what SCO is doing right
    now, far more effectively.

    If IBM is serious, they should:
    - create some kind of open source compatible license for their patents.
    - As a general policy, put their patents under that license.
    - Actively support the reform of patent law in general.

    Talk is cheap, and Nick Donofrio was playing to an audience. That is not to say
    he was being dishonest. We have no particular information on that subject.

    [ Reply to This | # ]

    Turnip Trucks
    Authored by: star-dot-h on Thursday, August 05 2004 @ 07:09 PM EDT
    "We didn't just fall off a turnip truck"

    Quite right.

    You would think by now PJ has enough of a pedigree for us not to jump to stupid
    and wrong-headed conclusions. I for one have often been rather suspicious of
    IBMs motives, but having followed Groklaw's destruction the MS/SCO attack on
    FOSS for a year or so, I am more willing to accept PJ's very positive take on
    this and many other issues.

    [ Reply to This | # ]

    Why Software is Different from Hardware vis Patents.
    Authored by: BitOBear on Thursday, August 05 2004 @ 09:43 PM EDT
    Software is different because it is new. This is not homily (sp?). In the
    physical world of physical patents _absolutely_ _everybody_ knows what a wheel
    is, what a pully is, what an incline plain is; how you cannot patent the
    "block and tackle". That is, every human being knows (to within some
    limit) what *CLEARLY* cannot be patented.

    What we have people patenting in the software regions are things like:

    -- Going into a merchant with whom you have an established relationship,
    selecting an item from a shelf, saying "put it on my tab" and then
    leaving. This is what the "One-Click Shopping" patent is by analogy.

    -- Using a block-and-tackle system to lift a Piano (instead of lifing any other
    thing). This is the AT&T "Backing Store" patent, which is a patent
    on using regular memory to keep a copy of regular memory, so that that regular
    memory can be restored later. The thing that made this "novel" was not
    the act of remembering, but the act of remembering "what happened to be on
    the screen before a popup window was popped up" (because that "regular
    memory" was what the display (dirver/chip) also read to display the screen)
    so that the window could be popped down. I saw this technique used by
    junior-high school students using TRS-80's in 1978. The patent was issued in
    1985.

    -- Calling someone down in the records department and asking them to look
    someting up for you. This is any number of "client/server software"
    patents. You actually see a lot of these. People who arn't patenting their
    database or their application, but instead patenting the application using
    client-server data transfer models to communicate between the two elements.

    It just goes on an on.

    So the first "difference" with software compared to real world patents
    is that the things that absolutely anybody would laugh out of the patent
    applications "in the real world" are getting through "in the
    software world" because they are hidden in expansive verbiage.

    And don't get me wrong, this happens in the "real world" too, just not
    as often. Not too long ago some guy got an "idea patent" in Austrilia
    for... get this... the wheel. He'd just packed it so full of melarky that it
    slipped by. you know, (not a quote from the patent) "a means by which
    contact forces and impacts cause by interraction with an uneven surface can be
    directed through a mesh to a central structural support such that..." (e.g.
    legaleeze bull patent-speak. 8-)

    The second way Software is different is that none of the software can make the
    parts of the computer do things that the parts cannot do by design.

    Look at the old DesqView (sp?) patents from the mid eighties. These were patents
    on using the virtual memory support built into the (then new) Intel 286 and 386
    to intercept the direct-to-screen writes common in the IBM-PC programs of the
    era. There wasn't anything particularly amazing about doing this, even if they
    were the first to do it. See, the brand-new chips let you virtualize any type of
    memory, and the screen memory was memory, and the programs were doing memory
    access. So it was "new" to use the chips as designed and built and the
    only reason that "nobody had done it before" was that the new hardware
    was... new...

    We already know that, for instance, you cannot patent taking two parts that work
    a cerian way and placing them together to continue working in that ceritan way.
    (Don't remember the citation but it is an SCOTUS, it was when one grocery store
    "copied" another's technique of putting a conveyor belt next to a cash
    register. Good thing they kept that bottled up.) Any yet, there is that
    patent.

    Really, think about it:

    A means by which a sewing machine, with automatic embroidary functions that
    include flower paterns, is employed to repeatedly embroider flowers onto an item
    of clothing such that the resulting pattern of embroidered flowers will cause
    enjoyment and contentment in the viewer...

    A means of applying paint to canvas with a brush or sprayer in a pattern of
    repeating flowers such that the resulting pattern...

    etc...

    not patentable...

    The third and final reason that software isn't patentable is that everything you
    do on a computer you already do in real life. A computer, by means of its
    software, automates repetitive tasks. It is a giant adding machine. And just as
    an adding machine is patentable, the people who make the real live physical
    parts of your computer enjoy patent protection on thoese parts. The software is
    just a spesific use of those parts.

    What if accountants held patents on tallying balance sheets?

    You could go out and buy the adding machine, but you wouldn't be able to apply
    that machine to your business without the express permission of a local
    accountant. Not even as a trial run before getting the real certified accountant
    to do the real work. You would be enjoined, without a licence, from tallying up
    some rough costs on a napkin when discussing a possible new venture with a
    prospective partner BECASUE THE ACCOUNTANTS OWN THE EXCLUSIVE MONOPOLY ON ADDING
    UP.

    That is what is happening with software patents. The "software
    companies" *OWN*, not a copyright on the software that you happen to have
    bought form them, but *THE* *ACTUAL* *AND* *ENTIRE* *CONCEPT* of "the
    spread-sheet" or "one click shopping" or "indexing a
    file" (yes, as in the computer equivalent of the little paper tabs on a
    folded up piece of cardboard containing memos or whatever) and can ENJOIN YOU
    from doing things you already know how to do because you DARE to do it with the
    assistance of a machine.

    Software Copyright, as in "I wrote it, you pay me for it, or write your
    onw" is ok.

    Software Patents, as in "I thought about writing it first, so pay me if you
    want to write it yourself" is not.

    Notice that we talk about "writing software" not "inventing
    software"; we use "programming languages" and so on. Everything
    about software is analogus to the art of writing and drawing, and is naturally
    in the realm of Copyright. The Patent thing was started when the AT&T guys
    patented "the set-uid bit" in UNIX, but you know what? They built a
    piece of hardware and patented *taht*, as a lark.

    Finally, the Patents are supposed to contain enough information to recreate the
    "invention". Software patents do not. They cannot because the
    "invention being described" in most cases is so broad and vague that
    there is no actual invention.

    Consider the recent case that eBay *LOST*. The patent purported to describe a
    means whereby a computer with a modem and a light could be used to let a remote
    person bid on an auction. Never mind that half of what was described was
    *EXACTLY* the same thing as having your personal assistant sit in the crowd wiht
    a cell phone and waive their hand when you told them to. Never mind that the
    other half of what was described was "a classified ad placed on a 1970's
    era hobbiest bulliten board system." There were enough "or else"
    secondary claims that the patent basically reduced to "anything vaguely
    auction-like, as long as there was a computer in there somewhere." eBay
    lost because someone patented "the auction" as if it were a new idea
    by adding "on a computer" or "over the net". But I digress,
    the claims were so broad that they *COULDN'T* *POSSIBLY* contain enough
    information for "a person skilled in the art to recreate the
    invention." An infinite number of not-even-remotely similar things were
    covered, and so there was "no invention in particular."

    And now we all burn.

    [ Reply to This | # ]

    DiDio's spin on the IBM statement is telling
    Authored by: mks on Friday, August 06 2004 @ 07:56 AM EDT
    In case you did not see the quote from DiDio about the IBM pledge to not use patents against Linux, you should really check it out. There is a rather obvious slant/bias in her remarks. I just wonder who put her up to it:
      There are other reasons for IBM's nonenforcement announcement, Yankee Group analyst Laura DiDio told LinuxInsider. For one thing, it's already spending a lot of time in court.

      "With SCO and other suits, IBM has its hands full," she said. "They don't need to add to their lawsuit load right now."

    The E-Commerce Times is one of those that reported the quote from DiDio.

    And if anyone things that IBM is "too busy" in court at the moment does not know the resources of IBM.

    [ Reply to This | # ]

    If it's true and Linux breaks others patents, then it's illegal?
    Authored by: Anonymous on Friday, August 06 2004 @ 11:49 PM EDT
    I'm a huge linux fan like most here. But if IBM and M$ have patents that Linux
    infringes upon, then isn't it true that Linux might be, or could be shut down to
    nothing at any given time? Would that not make Linux an illegal product? I would
    like to know just what patents M$ and IBM have that Linux would be infringing
    upon.

    [ Reply to This | # ]
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