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OSDL Announces Patent Commons Project
Tuesday, August 09 2005 @ 10:12 PM EDT

OSDL has announced a patent commons project. This is a huge step legally. Eben Moglen is encouraging everyone to support the project:
"OSDL is the ideal steward for such an important legal initiative as the patent commons project," said Eben Moglen, chair of the Software Freedom Law Center. "No matter what your stand on software patents, and I oppose them, I call on developers to contribute to the OSDL patent commons project because there is strength in numbers and when individual contributions are collected together it creates a protective haven where developers can innovate without fear."

More details on Business Week, where Stuart Cohen, CEO of OSDL, explains the purpose:

STRENGTH IN SHARING.

More than 3,000 patents have been pledged to date. We expect many more to follow.

The idea is that a pool of software licenses and software patents (issued and pending) are held in something like a virtual trust for the benefit of both developers and users of open-source software. In general, the vendors who make this pledge are promising not to litigate against people and companies whom they might otherwise sue. These pledges help reassure companies who run open-source software in their business.

We like this idea so much that we're about to take it one step further. We're establishing an OSDL patent commons project that aims to centralize the good works of these vendors, as well as future individuals and organizations who may wish to pledge patents.

INVITATION TO BILL.

By establishing and maintaining a central repository with a library and database, we want to remove the logistical and administrative challenges both for those who pledge patents and those who use open-source software. We would hope that a one-stop commons -- overseen by a nonprofit, vendor-neutral, and trusted friend -- helps everyone.

The "Invitation to Bill" header is a call to Microsoft to donate. He also writes about license proliferation, so take a look. On that subject, you'll enjoy the article about HP's Martin Fink's funny but important speech at LinuxWorld in which he called on IBM and Sun to drop their vanity licenses, the IBM Public License and the CDDL respectively, and use the GPL instead. He's right, Sun's churlish response to Fink notwithstanding. Diane Peters, General Counsel for OSDL, wrote an article last month for Computerworld about the two issues she sees as the future legal battleground to pay attention to now, and if you read what she has to say, you'll understand even more clearly why this project is important, now that the SCO storm is subsiding:
So the question naturally arises, What should we focus on next? The answer: software licenses and software patents. These are two of the most important legal issues the industry will address in the coming years. How these issues are resolved will have a defining impact on the success of Linux and open-source software. These are the issues to which the entire IT community should devote its attention, energy and resources. . . .

Already, the foundation has been built for a patent commons, the purpose of which is to reduce the likelihood that software patents will be asserted against open-source software and threaten innovation. A similar foundation is being built for improving accessibility to source code for purposes of locating prior art. The success of these efforts will depend on contributions, large and small, from everyone dedicated to the longevity of open-source software. It relies in part on executives staying involved and supporting these important projects.

So, this is the first prong of a two-part effort, with a prior art database to follow. One of the difficulties with software patents is that software was deemed patentable by a court decision, with no prior art database in place, no trained examiners, and only the most vague of guidance on how it all should work. If you'd like to learn more about all that, I can't recommend highly enough the video of Red Hat's Deputy General Counsel Mark Webbink's speech at June's Red Hat Summit in New Orleans. He too mentions that one way to fix the software patent mess in the US is to have a reliable database of searchable prior art. You can find it and all the other speeches here. Ogg is on the way for Webbink's speech. I enjoyed listening to them all, including John Buckman's. He's the founder and CEO of Magnatunes, and he explains Creative Commons licenses very well indeed.

I debated saying this next bit, because I'll get email about it, I'm sure, about how I should always stay "professional" and all, but I was struck by Michael Tiemann's stage presence. I'd only seen one picture of him before, but in action, it's an entirely different effect. Take a look at his style, the tie, the jacket, the everything. The guy is a total hunk. And a geek. Yoo hoo, SCO employees, time for a reality check. Geek is in, fellas. No more offensive name-calling, please. Deal?

Here's the OSDL press release:

*****************************

OSDL Announces Patent Commons Project
Tuesday August 9, 5:30 pm ET
Leading Linux Advocacy Consortium Will Collect Software Patents and Patent Pledges by Vendors, Industry and Developers

SAN FRANCISCO, LINUXWORLD, Aug. 9 /PRNewswire/ -- The Open Source Development Labs (OSDL), a global consortium dedicated to accelerating the adoption of Linux, today announced a new initiative called the OSDL patent commons project designed to provide a central location where software patents and patent pledges will be housed for the benefit of the open source development community and industry.

"The OSDL patent commons project is designed to increase the utility and value of the growing number of patent pledges and promises in the past year by providing a central repository where intellectual property can be held for the benefit of all of us," said Stuart Cohen, CEO of OSDL. "Our goal is to make it easier for developers and industry to take advantage of the good works of vendors, individuals and organizations who may wish to pledge patents and intellectual property in support of the community."

For many, the administrative and logistical challenges posed by granting individual licenses to the growing open source community can be a barrier to the formal licensing of patents. In addition, as more vendors such as IBM, Nokia, Novell, Red Hat and Sun Microsystems pledge their intellectual property to the benefit of the open source community, to date there has not been a single, reliable place where developers and industry are able to advantage of these offerings.

By contributing patents to the OSDL patent commons project, patent holders can be assured that the right to enforce the patents is administered by an organization dedicating to accelerating the development and use of open source software. Developers can be assured that those patents will not be enforced against them on open source software.

"Software patents are a huge potential threat to the ability of people to work together on open source," said Linus Torvalds. "Making it easier for companies and communities that have patents to make those patents available in a common pool for people to use is one way to try to help developers deal with the threat."

While still in the planning stages, the OSDL patent commons project will initially involve the following:

  • A library and database that aggregates patent pledges made by companies. The library will also aggregate other legal solutions, such as indemnification programs offered by vendors of open source software.
  • A collection of software patent licenses and software patents (issued and pending) held for the benefit of the open source community.

More details on the OSDL patent commons project will be announced in the coming months.

"OSDL is the ideal steward for such an important legal initiative as the patent commons project," said Eben Moglen, chair of the Software Freedom Law Center. "No matter what your stand on software patents, and I oppose them, I call on developers to contribute to the OSDL patent commons project because there is strength in numbers and when individual contributions are collected together it creates a protective haven where developers can innovate without fear."

About Open Source Development Labs (OSDL)

OSDL -- home to Linus Torvalds, the creator of Linux -- is dedicated to accelerating the growth and adoption of Linux in the enterprise. Founded in 2000 and supported by a global consortium of major Linux customers and IT industry leaders, OSDL is a nonprofit organization that provides state-of-the-art computing and test facilities available to developers around the world. With offices in China, Europe, Japan and the United States, OSDL sponsors legal and development projects to advance open source software as well as initiatives for Linux in telecommunications, in the data center and on enterprise desktops. Visit OSDL on the Web at http://www.osdl.org/ .

NOTE: OSDL is a trademark of Open Source Development Labs, Inc. Linux is a trademark of Linus Torvalds. Third party marks and brands are the property of their respective holders.


  


OSDL Announces Patent Commons Project | 128 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections?
Authored by: grundy on Tuesday, August 09 2005 @ 10:34 PM EDT
under here

[ Reply to This | # ]

OT goes here...
Authored by: grundy on Tuesday, August 09 2005 @ 10:36 PM EDT
External linkages & hot knews goes here

[ Reply to This | # ]

Some thoughts
Authored by: dyfet on Tuesday, August 09 2005 @ 10:41 PM EDT
I always had mixed feelings about this effort. In one way I had been concerned that it accepts and formalizes further the immoral practice of software patenting. However, it does so in a way that makes me think about what I do like about the GPL. Like what the GPL does to copyright law, this can potentially, if done currectly, turn something that is otherwise normally abusive into something that only hurts those who wish to hurt others.

[ Reply to This | # ]

OSDL Announces Patent Commons Project
Authored by: Anonymous on Tuesday, August 09 2005 @ 10:44 PM EDT
Can this be used defensively against a potential M$/megacorp threat to a FLOSS
project?

If so, then this is fantastic, the only patenters to fear will be the
'Intellectual Ventures' type hoarders who don't actually have products.

[ Reply to This | # ]

Makes sense. BSD/MIT-style licensing may get marginalized?
Authored by: dwheeler on Tuesday, August 09 2005 @ 11:38 PM EDT
Frankly, this approach makes sense (though the devil is in the details). The proprietary world is already, for the most part, already in "mutually assured destruction" mode on software patents, and although it may be distastful, this is probably necessary in countries that allow software patents.

Of course, all of this means that increasingly software patents are even more obviously a failure. The big proprietary companies almost never sue each other, because they would then pull out all the guns and stay in court forever. Little software vendors have no hope; big vendors have a thousand patents that, while none may actually be valid, the little vendor cannot afford the court battle and will thus lose by default. The nonsense that patents protect the 'little guy' is just that, today: nonsense. The only type of organization that really wins in a software patent world are the patent litigator shops -- the well-heeled organizations whose sole purpose is to litigate, and since they make no products and they can't be sued for infringement themselves.

In the long term, it's not clear that Microsoft and IBM will want to continue to play this software patent game... they may want software patents to go away too in the future. IBM makes more money from OSS than from patent licensing. Microsoft probably sees patents as the only way to protect itself against OSS, but Microsoft is incredibly vulnerable to attacks from patent litigator shops -- Microsoft has lots of money for the taking, and it only takes a few losses in court to empty the coffers. If the only group making money in software patents are patent litigators, who make no products, the software industry of patent-granting countries could be quickly devastated (the companies, of course, will flee to countries without software patents, where it's safe to make products).

Patents may also marginalize BSD/MIT-style licensing. The proprietary companies have been amassing patents for years. The OSS community may amass patents to protect their turf, but I would expect those to only apply to OSS components (else why donate them -- just drop the patent). Increasingly it may be impossible to write any code that doesn't hit a landmine from one camp or the other. As a result, code may be "BSD licensed" but in fact it cannot be incorporated in a proprietary program, because patent law (in that country) forbids it.

[ Reply to This | # ]

Michael Tiemann, The Incredible Hunk
Authored by: Weeble on Tuesday, August 09 2005 @ 11:47 PM EDT
PJ, I'll stick my neck out and say that anyone who emails you complaining about
a "lack of professionalism" because you expressed your opinion that
Michael Tiemann is a hunk--well, they're probably insecure about their own
masculinity.

However, turnabout is fair play. Just make sure your shy self is secure enough
in your own femininity so that you'll be ready when a picture of you in the
famous red dress appears (preferably as a feature article on Groklaw after Judge
Kimball finally runs the SCOundrels out of his courtroom with a spiked
clue-by-four?) and some of us go "WHOOO-WOOOO! MAMAMAMAMAMA! WHAT A
BABEOLICIOUS FOX!!!"

If you're ready for that, you can call all the guys you want to
"hunks". And the complainers can just grow up and loosen up.

---
You Never Know What You're Going to Learn--or Learn About--on Groklaw!
(NOTE: Copying Permissions Are Stated in My Profile Bio)

[ Reply to This | # ]

OSDL Announces Patent Commons Project
Authored by: Anonymous on Tuesday, August 09 2005 @ 11:54 PM EDT
"I don't like software patents. They are, in fact, protections of mathematical expression. They're hows. Real inventions are whats. They should be no more subject to patent protection than the words you're reading now. It's like patenting 1+1=2 and expecting every adding machine maker to pay you."

Link

Not necessarily a blog to read, but I really liked this paragraph in her blog. It's short and simple and spoke volumes to me. Hope it does for you as well.

[ Reply to This | # ]

Intellectual Property Is Too One Sided
Authored by: Dijital on Wednesday, August 10 2005 @ 12:21 AM EDT
Is it just me or lately does open source always seem to be the type of software
that's talked about from the whole IP nonsense? I've read tons of articles and
reports talking about how open source projects could be in big trouble because
of IP issues. Naturally, when you have freely available source code, it makes it
that much easier to sift through to see if the developer is a supposed dirty IP
thief.

I'm no programmer by any stretch of the imagination (I tinker with writing
PHP-based websites though) so I don't know the inside information, but perhaps
someone can explain it to me. How do proprietary (closed source if you will)
applications get policed to be sure that there is no infringement of someone
else's IP?

Whatever the case, it seems to me that software IP issues are all too often
being targetted at open source software because of its nature. Although it would
be a monumental undertaking, I'd honestly like to see companies have their
software analyzed to see if they happen to be treading on someone else's IP. If
they were found to be, I wonder how much they'd enjoy software patents then?

We all know the only proper way to solve the software patent issue is to get rid
of them completely. The threat of IP infringement in software is a looming
vulture that stifles innovation and freedom. Since that won't happen (yet) I
think this centralizing move by the OSDL is fantastic. Let developers innovate
without fear and let them keep writing good quality software, not worry about
whether or not a lawyer is going to be at their door telling them that they're
about to get the pants sued off them.

---
- Armando -

"mv sco /dev/null"

[ Reply to This | # ]

INVITATION TO BILL
Authored by: Mecha on Wednesday, August 10 2005 @ 12:26 AM EDT
I think Darl becoming a regular poster on Groklaw is more likely going to happen
then Uncle Billie donating anything to the product that is eating away at his
meglomania. With their attempt to obliterate OpenGL in the next version, it is
very apparent that M$ is playing hardball with FOSS and willing to take on
another Anti-Trust lawsuit for abusing their monopoly status just to try and
drown out competition from a much better and much more secure product.

---
************************************************************

I am not clever enough to write a good signature. So this will have to do.

*****************

[ Reply to This | # ]

  • Let him..... - Authored by: Anonymous on Wednesday, August 10 2005 @ 01:40 PM EDT
Another approach...
Authored by: Anonymous on Wednesday, August 10 2005 @ 12:38 AM EDT
This is great for users of FOSS, and a very good idea in my opinion.

But it does nothing to help those who are against software patents in general.
Naturally, it's not intended to, but an extension on this idea can be made to.

Imagine this: a patent portfolio held in trust by some organization. They make
no product, but unlike the "patent vampires" [1] who have nothing but
patents and who intend to sue, this is run almost like one save that they, by
charter, only sue those who use software patents offensively (e.g. as something
other than a counter-claim to a charge of infringement).

I suppose that can't do anything against the "vampires" directly, but
it would put a chill on the use of software patents, effectively rendering them
moot. Thus, the government would either have to restrict the "patent
vampire" mode of operation or software patents themselves might get
nullified, both of which would be positive outcomes.

[1] I call them "vampires" because they drain companies of cash.

[ Reply to This | # ]

Open Patent Pool
Authored by: Anonymous on Wednesday, August 10 2005 @ 12:58 AM EDT
Does anyone know if this is related to Mark Shewmaker's Open Patent Pool effort? Very similar idea. Openpatents.org has been around for several years now. However, it seems to have gotten bogged down on producing a sufficiently flexible and yet comprehensible license. They probably also have some trouble getting the necessary momentum to start, which OSDL might presumably have a better chance of doing. Wim.

[ Reply to This | # ]

It's good, but ...
Authored by: Anonymous on Wednesday, August 10 2005 @ 03:23 AM EDT
"...one way to fix the software patent mess in the US is to have a reliable database of searchable prior art"

This does not fix the mess. The only way to fix the mess is to abolish software patents.

Of course, getting rid of software patents altogether is going to be extremely difficult because of the well-funded opposition. So the 'reliable database of searchable prior art' may be the best we can do right now. But let's not kid ourselves: it's a second-best expedient, like putting a band-aid on a broken limb, not a 'fix'.

[ Reply to This | # ]

OSDL Announces Patent Commons Project
Authored by: Anonymous on Wednesday, August 10 2005 @ 03:54 AM EDT
If these patents are released,they need to be done under a full glp style
licence. most importantly, with a freedom or death clause. The major industry
players are basicaly in an arms race situation, with each able to aviod patent
litigation by having their own arsenal that they can launch at eachother, and
therefore asuring they won't be sued. the free software comunity needs a
similar arsenal, and an understanding that as many as posible will be used
against any company that sues someone.

[ Reply to This | # ]

OSDL Announces Patent Commons Project
Authored by: seanlynch on Wednesday, August 10 2005 @ 06:58 AM EDT
If the OSDL were to join with other well known groups like the EFF (Electronic
Freedom Foundation) and SPI (Software in the Public Interest) and form a
seperate trust with trustee members draw from the Technology and Legal
communities, it would lead to greater credibility and stability for the trust.

The effort should be as inclusive as possible, while having clearly defined
goals embodied in its charter.

[ Reply to This | # ]

I don't get it
Authored by: Anonymous on Wednesday, August 10 2005 @ 07:53 AM EDT
... how is this going to help me as a developer?

"a protected haven" they say...well, as a developer I don't fear the
patents I know exists. I fear those I don't know. Those which are _not_ in that
haven.

[ Reply to This | # ]

How to kill Mickey Mouse(tm) patents
Authored by: Anonymous on Wednesday, August 10 2005 @ 07:59 AM EDT
How about this for a really stupid idea.

Suppose, say, M$ took out such a patent. M$ is a closed source company (its code
is not only copyright but secret as well); patents are, on the other hand, open
to public inspection. M$ of course wants it all ways: it wants the patent but
also wants to keep the implementation secret.

Now, suppose that a 1000 programmers each write an implementation of the patent
in software and send it to M$ with an offer to sell it for a fee. All perfectly
legal and business like. Just to make sure that M$ has no excuse for not seeing
it, also publish it conspicuously on the Internet (with a warning that the code
can only be used with the permission of both M$ and the author).

If M$ then uses the patent in a product, 1000 people are likely to sue for
copyright infringemnt (with demands for discovery of course). These may be
brought in many different countries (basically limited to where the software is
sold) many of which may not even recognise software patents. In fact, every one
of the 1000 programmers could potentially sue in every country!

If M$ had already written the final code before applying for the patent, then
they have merely suffered some inconvenience. But if, as I suspect, the patent
was issued to some manager who knocked up some code in VB over the lunch hour,
then they have an interesting problem on their hands.

Imagine M$ arguing that the copyright is invalid because the code is so stupidly
obvious that many people came up with the same thing. And the other side saying
that it cannot be so stupidly obvious because you cannot patent the stupidly
obvious, can you? (In some countries the judge might actually believe that.)

Chose your countries carefully, if you win in one place, use the profit to
finance a suit in another.

After a while M$ will realise that patents on the stupidly obvious are worse
than useless.

Crazy - but fun.

Alan(UK)

[ Reply to This | # ]

Some Questions
Authored by: Anonymous on Wednesday, August 10 2005 @ 10:53 AM EDT
1) Who is going to carry out the patent battles and pay for them?

2) Will there be someone there to defend FOSS for EVERY patent attack? (such as,
can one come and request help and will they get it, or is decided internally
which battles to fight and is all of this subject to strict criteria?)

3) Will there be protection for FOSS if new patented technology is ported over
and the patent holders start a lawsuit?

4) Is there any plan at all for dealing with patent-trolls?

5) Is there a plan to attack software patents directly and get them all
invalidated, or is most of the energy spent, if not all of it, be directed to
making this hybred system to work?

[ Reply to This | # ]

It's not just problems with software
Authored by: Anonymous on Wednesday, August 10 2005 @ 10:56 AM EDT
Sure, software patents have problems. However, problems with patents are not
unique to software. In fact, the entire system of intellectual property is
screwed up. We need to find a new system which is fair and equitable, and not
some patch on a bad system which is based on a reality far different than we
currently find ourselves.

[ Reply to This | # ]

OSDL Announces Patent Commons Project
Authored by: Anonymous on Wednesday, August 10 2005 @ 11:33 AM EDT
Many have pointed out that this will not protect FOSS from litigation because
these patents can't be used to counter sue by the FOSS community, but it does
have some value if companies like Sun and IBM contributes a fair share of their
patents because sueing FOSS is likely to attract attention of IBM and Sun.
Just because FOSS can't counter sue, doesn't mean that IBM and Sun won't
retaliate on FOSS behalf and since FOSS might not have ressources to actually go
to court, leaving litigation to IBM and Sun.
Maybe this arrangement is all for the best since it would minimize the need for
FOSS to spend time in court. FOSS could concentrate on defence and leave the
counter attack to others.

[ Reply to This | # ]

OSDL Announces Patent Commons Project
Authored by: Anonymous on Wednesday, August 10 2005 @ 11:57 AM EDT

I listened to Eben Moglen's talk yesterday at LinuxWorld, along with a couple
guys from Novell and Red Hat, and the OSDL head.

Eben's attitude toward SCO is that they're "dead" and he wants to make
sure something like them never happens again. He pointedly targeted Microsoft's
patent acquisition campaign when discussing the Patent Commons Project.

[ Reply to This | # ]

CDDL
Authored by: Anonymous on Wednesday, August 10 2005 @ 01:21 PM EDT
CDDL has a very specific purpose for Sun. It prevents all of the best features
of Solaris from appearing in Linux.

Sun's intent was to create a competing open source community, not merge and
disappear.

Don't hold your breath for a GPL'd Solaris.

[ Reply to This | # ]

  • CDDL - Authored by: Anonymous on Wednesday, August 10 2005 @ 01:54 PM EDT
    • CDDL - Authored by: star-dot-h on Wednesday, August 10 2005 @ 06:02 PM EDT
  • CDDL - Authored by: davecb on Thursday, August 11 2005 @ 12:58 PM EDT
Why 'stay professional'?
Authored by: darkonc on Wednesday, August 10 2005 @ 02:28 PM EDT
About the only thing I have against your post about him being a hunk is that you violated your standard of providing links to back up your opinion.
:->
<img src=http://www.bcgreen.com/pics/halfsmile.jpg size=19x19> (for MS's smiley patent)

---
Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

OSDL Announces Patent Commons Project
Authored by: clark_kent on Wednesday, August 10 2005 @ 02:32 PM EDT
Now this is what I call innovative. Not 7.1 bill in R&D from Microsoft. This
has got to be some the best innovation yet in legal work and supportive means
for Open Source development. Not to say we should have software patents. But at
least something to fight others who do.

[ Reply to This | # ]

Steven J. Vaughan-Nichols with some other reactions in Eweek.
Authored by: Anonymous on Wednesday, August 10 2005 @ 06:06 PM EDT

At this time, the patent commons project is still in the planning stages.

The current plan is to create a library and database that aggregates open-source-friendly patent pledges made by companies. This library will also collect other potential IP (intellectual property) legal defenses, such as the indemnification programs offered by vendors of open-source software..... Eweek

Brian S.

[ Reply to This | # ]

OSDL Announces Patent Commons Project
Authored by: Anonymous on Wednesday, August 10 2005 @ 07:42 PM EDT
"I debated saying this next bit, because I'll get email about it, I'm sure,
about how I should always stay "professional" and all, but I was
struck by Michael Tiemann's stage presence."

yeh some Trog might flame you PJ but you already got the important peoples
respect and I think i speak for many in saying that we like your personal
touches.

jealously yours
Baz

[ Reply to This | # ]

OSDL Announces Patent Commons Project
Authored by: Anonymous on Wednesday, August 10 2005 @ 11:02 PM EDT
How will this help in any meaningful way?

If someone sues an OSS developer for patent infringement,
you cannot use this collection of patents to defend?

I large and searchable database of prior art is a good
idea to prevent things from being patented in the first
place, but why then the call for patent donations? It
should be even more focused on prior art--just get people
to enter numerous patentable software concepts. A
wikipedia-type format would be good for developing both
quality and quantity.

It is good that company's owning software patents make
this kind of pledge... It slightly reduces the threat but
doesn't do anything to defend anyone under attack.

Matthew

[ Reply to This | # ]

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