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Are Patent Agreements Harmful? - Updated
Tuesday, April 03 2007 @ 11:11 AM EDT

Allison Randal has posted reactions to the GPLv3 draft on O'Reilly Radar (Tim has a comment there too), and I have answered a point or two. Since I never post elsewhere without letting you know, so you always know if a post is really written by me and not an imposter, I'm letting you know, and I'll repost it here, to verify.

For context, here's the piece she wrote that I responded to:
Second, this addition to the GPLv3 is based on an assumption about the nature of the Microsoft/Novell deal. The key phrase is "conditioned on the non-exercise of any of the rights that are specifically granted to recipients of the covered work under this License." The assumption is that the grant of the patent license applies to users of the particular distribution of Linux (SLES) only if "the user does not make or distribute additional copies of SLES" (from the rationale document for the third draft, page 25), so it would be a restriction on the redistribution of GPLd software. But we don't actually know yet if that's part of the agreement. So they're adding language to the license in response to a deal, when the language may not even turn out to be relevant to the deal.

A third, and possibly most important, question is whether the terms here (however they're phrased) are even what free software needs. At the core it's an attempt to stop companies who distribute Linux, for example, from making patent deals with other companies. But these distributors already have hundreds of other deals with other companies. For most companies (software or hardware) the whole point of filing patents is to use them as the basis for collaborative deals with other companies. The real threat is not patent deals, they're harmless and only give the two companies involved a small measure of comfort that their partner won't stab them in the back for the duration and scope of the deal. It's patent suits that are dangerous and destructive, whether they're frivolous or not.

For full context, you likely will want to read everything she wrote, not just this segment, but this is just so you will understand what I wrote. She and I are on the same committee, by the way, and her input is very helpful on specific language. But this discussion has more to do with the nature of FOSS development and whether the community can or should just go along with the proprietary way of handling the software patent problem. Tim posted this:

What bothers me here is the amount of attempted micromanagement of others that I see in this license draft.

For a license that's supposedly about software freedom, it's got an awful lot of detail on what people can and can't do with the software. And as you note, it's in the hands of a group that's willing to reshuffle the cards, making the license a moving target.

For true freedom, I'll take BSD any time

I responded like this:

I think you and Tim are both missing some things:

1. Eben Moglen *has* seen the agreement under NDA, so he does know what it says. I think it is therefore safe to say the language crafted is designed to match what he read.

2. Patent agreements may not be unduly harmful for proprietary companies, or so you posit. I think we all know that Bill Gates said if patents had been allowed on software when he started, the entire industry would be shut down by now. But leaving that aside, they are harmful for GPL'd code, in my view. Even GPLv2 has an implied patent license, the goal being to prevent patent infringement lawsuits over GPL'd code *if* you have taken the code and benefited from it by copying, modifying, redistributing, etc. You don't have to use GPL code. You can write your own code or buy some from someone. But the idea is to create a patent-free zone for GPL code, where innovation is not dependent on payments, further restrictions can't be placed on the code, and you can't benefit from the code and then turn around and sue the author.

A lot of GPL'd code is written by individuals, not companies, and they mostly can't afford to pay for patent licenses, even if they were willing, so if enough patent agreement arrangements get set up, it can actually shut down FOSS development as we know it. Even if it didn't have that radical effect, it certainly would change it, of necessity, since currently you can freely download such software for free.

I think the current Microsoft-Novell agreement, had it been in place in the early nineties, would have been sufficient to shut down Linux development before it could get off the ground. Most of the contributors then were individuals, not companies or employees of companies, who wrote code as volunteers. Under the agreement, they would not, as I understand it, have been able to write code ever used in a commercial system without threat of being sued for patent infringement. Who would wish to take such a risk?

So, shall we say we need no further Linux-like development projects? Unless we decide that volunteer coders are no longer needed and the Linux experiment is the last of its kind, then patent agreements are indeed harmful, since they would have that damaging effect on the open development method.

FOSS isn't developed the way proprietary software is, so what works in one environment doesn't work in the other, so extrapolating from one to the other does not work. You don't have to be anti-proprietary software to see that it's two different types of development.

3. BSD is a fine license for certain purposes, but not for ensuring freedom for the code. The whole idea of the GPL is to make sure the code does not get taken proprietary. The BSD license doesn't address that or block it. Companies can take BSD code proprietary, and then users can't view the code or fix it or modify it or do much of anything with it. Ironically, then it is possible for the company to make one small change and then charge the actual authors of the BSD code for the privilege of using the slightly modified version and to compete against them in the market. That's why JBOSS, prior to its acquisition, used predominantly LGPL. If they used the BSD, they did the development, then a company could take their code, make a small change, and then sell it in competition, without the development costs, and if they were a larger company, they likely could win the competition. Does that feel like freedom to you? Sensible even? Surely another word would be more appropriate.

The BSD license does nothing to ensure that code remains nonproprietary. If that is your definition of "freedom" -- maybe you are thinking from the point of view of the programmer, and maybe not about the JBOSS situation, and not about the end user, and certainly not about the code.



I have also added a comment to a new article she wrote on GPLv3 and 2-only compatibility, although she wrote GPLv2 instead, which makes no sense since v2 is compatible with v3. She wrote in a comment that GPLv3 would have no effect, because FSF couldn't sue on aggregated works:

This position means that there is no way for the FSF or anyone else to enforce any license on the Linux distribution as a whole, or on Linux as an operating system. Aggregates aren't subject to the GPL terms. Licenses can only be enforced on individual components separately, and lack of compliance on one component has no impact on other components.

I responded:

The SCO litigation demonstrates how the GPL license *does* have an effect, even though the FSF isn't the one bringing the claim and neither is Linus, the copyright holder on the aggregate work. It's the author of the works infringed, the copyright holder on the pieces inside the aggregated work, that is doing so, namely IBM.

GPLv3 won't be any different. And it will be just as effective, hopefully more so.

By the way, if the Linux Foundation were to follow the path you mention, not that it plans to, it would be just as difficult to make the switch as it will be to switch to GPLv3, because all the authors would have to agree, and some of them are dead, disappeared, etc.

I wonder why so much energy goes into trying to subvert GPLv3. There must be a piece I don't see. The same thing happened with GPLv2. It's a genuine puzzlement to me. It's just a license, folks. And once it's out there, it's not the FSF that controls how you use it and in general it isn't the FSF that enforces it. Enforcement is by means of copyright law, which is powerful enough to do the job. You don't have to be the holder of the copyright on the aggregate work to enforce your piece.


Are Patent Agreements Harmful? - Updated | 48 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Errors here
Authored by: lordshipmayhem on Tuesday, April 03 2007 @ 11:30 AM EDT
Not that PJ makes any

[ Reply to This | # ]

Off topic here
Authored by: lordshipmayhem on Tuesday, April 03 2007 @ 11:32 AM EDT
Please make links clickable by:

1) typing the link <a href="">Like
2) Switch Post Mode to HTML
3) Preview

[ Reply to This | # ]

I think you overstate the frailty of the BSD License
Authored by: Anonymous on Tuesday, April 03 2007 @ 11:43 AM EDT
I'm responding to the tone of your remarks about the BSD License, not, perhaps
the facts. I inferred from your comments that a BSD licensed package could be
rendered useless by competitive release of a proprietary clone. Although
someone may use the package in a commercial release, that usage is a fork of the
original. The original remains available to the general public. Additionally,
the forker will lose the community support of the package when he creates his
commercial version. He will be solely responsible for debug and support of his
version, and will have to incorporate community improvements to the original
into his copy.
Although I prefer the GPL to BSD, I don't believe it is as crippled as you paint

[ Reply to This | # ]

Are Patent Agreements Harmful?
Authored by: Anonymous on Tuesday, April 03 2007 @ 11:54 AM EDT
The problem with the BSD license is best seen through the proprietary OS/X
release of the BSD OS. A big company forks the source, and then *hires all of
the important contributors*. There's the real competitive pressure:
developmental resources.

BSD has never fully recovered from that event.

[ Reply to This | # ]

Shutting down Linux development before it can get off the ground
Authored by: Anonymous on Tuesday, April 03 2007 @ 12:03 PM EDT

The nice thing with the Linux community is that it's a world-community. It doesn't have borders to the extent people are used to. You have individuals in Japan working with individuals in China combined with individuals from Norway and Sweden, mix in a spattering from Africa and South America....

The point is, MS might be able to shut down use of the GPL in US, but what are they going to do about the rest of the world? How long would it take the rest of the world advancing before the US Government started pulling MS up short with it's deals?

We're seeing an example of that in action right now. The anti-competitive cases across countries of the world. Other countries are pulling MS up short. Starting to reel them in. Korea is an example of a country that has already acted, even with the US "frowning" upon the issue.

The European commission still needs to show what they are actually going to do about MS. So far, there's lots of threats, but no real action yet. At least, not that I'm aware of. Has the payment of the fines started yet?

When other countries make MS play fair in their backyard and the benefits start showing through, what will the US Government do then? If they want to stay on top technologically, they're going to have to realise MS is a cost, not a benefit, and start acting accordingly.

In that sense, I'm not so sure MS' deal enacted in the 90's could have stopped Linux. It just wouldn't have taken place with individuals in the US contributing. Those individuals in the US that wanted to contribute may have very well gone to another country so they could.

With regards the changes of GPLv3, my thoughts are simple. Once upon a time I was considering what kind of software to put on my home system in place of Dos 6.22. I considered Linux and decided to read the license.

GPLv2 was very clearly written and easily understandable. It was actually a joy to read after having read several version of the MS EULA (due to that license, I never allowed any version beyond DOS 6.22 on my system). The terms of the GPL I found extremely acceptable. Compared with other licenses it was the license I felt emobidied the kind of agreement I can accept. A fair, balanced agreement that protected all parties of the agreement equally.

It has become my license of choice. Whenever I consider new software, if it's under the GPL it's immediately acceptable. If it's not under the GPL, I consider the terms and if I don't like the terms (such as those that used to surround Flash) I simply don't include the software.

With regards v3, when it's finally drafted I'll examine it and decide based on it's relation of fairness to all parties involved as I've always done. Considering the work of FSF in the past, I'm sure I'll find it acceptable. If not, there's nothing stopping me from continuing to release my own work under GPLv2.

Simply put for anyone that wishes to enter into an agreement with me whether it's to use their product, service, or use what I offer:

  1. You can't make me do business with you. I will decide whether I want to do business with you just as you have the right to decide to do business with me.
  2. If you wish to do business with me, then we must do business under terms both parties are agreeable to. You can't force me to accept terms I don't agree with. There's nothing in life I need so bad as to sell my soul and there's nothing I need so bad as to agree to terms I don't like. A prime example is my example of MS' terms and the last version of their product I ever used at home. MS can't make me purchase or use their product.

Appologies for the long-winded spiel.


[ Reply to This | # ]

Are Patent Agreements Harmful?
Authored by: rsteinmetz70112 on Tuesday, April 03 2007 @ 01:39 PM EDT
I think the biggest threat to FOSS and Linux is not the Novell Microsoft type of
agreement, but rather a more direct attack. No one seriously doubts that someone
somewhere holds patents (valid or not) which could be asserted against Linux.
Such an attack would be very expensive to defend and only a couple of actual
Linux Distributors have the resources to adequately defend against them. If
there were multiple attacks from different sources that could be devastating,
especially if the patent were difficult to work around. There is almost nothing
the GPL can do about third parties.

I'm still puzzled about how the Microsoft-Novell deal changes the situation of a
Red Hat or Ubuntu user. They still have the same potential exposure to Microsoft
asserting its patents against Linux. They also have massively greater exposure
from third parties who decide to assert patents against Linux. The only change I
see is the removal as Novell as a potential ally, something which wasn't even
considered untill Novell bought SUSE.

I agree with Tim that the attempt of "micromanage" FOSS development is
somewhat problematic. As the GPLvX grows in complexity there is a greater
opportunity for someone to find an exploitable vulnerability. More complexity is
almost never the best solution.

Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Patents = WMD
Authored by: LaurenceTux on Tuesday, April 03 2007 @ 09:44 PM EDT
even an Invalid patent is like a "bad batch" of a bioweapon
you might not get the exact results you want but you still will have a very
large group of TLAs asking some very pointed questions

Even IBM and ATT treat their inventory on a MAD basis
Okay so you have us on this patent okay we have found these dozen patents of
ours you are infringing on

[ Reply to This | # ]

Are Patent Agreements Harmful?
Authored by: Thomas Downing on Wednesday, April 04 2007 @ 06:52 AM EDT
Another gross mis-statement in the post is this one:
At the core it's an attempt to stop companies who distribute Linux, for example, from making patent deals with other companies.
To my understanding, the GPLv3 does no such thing. It addresses only a certain class of patent agreement, one which attempts to segregate the GPL code using population into 'safe' and 'unsafe' segments.
As I read it, GPLv3 does not address the more normal cross licensing agreement that affects (and attempts to affect) only the parties to the agreement.

Thomas Downing
Principal Member Technical Staff
IPC Information Systems, Inc.

[ Reply to This | # ]

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