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Software Patents Could Stop EU Linux Development
Posted by
Zonk
on Tue Mar 01, 2005 02:42 PM
from the or-so-he-says-anyway dept.
from the or-so-he-says-anyway dept.
sebFlyte writes "An expert in computer and Internet law has advised that if the CIID is passed in europe (which looks likely but is not certain) then the threat of patent litigation could bring European Linux development to a grinding halt." From the article: "There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged. There is more danger that those potential violations will be litigated..."
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Really? (Score:5, Funny)
Do you work for SCO?
Re:Really? (Score:5, Funny)
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Re:Really? (Score:5, Informative)
Actually, there's not a shred of evidence that Linux has any patented code in it. What has been agreed is that the current development model wouldn't stop such code entering the kernel. This is not the same as saying that this has already happened.
If it had, SCO would likely have presented this as evidence of potential violations as part of its case. That it has yet to present a single example, either of a violation of their own patents/IP or even a violation of someone else's, is strong evidence no such violation has actually occured.
The closest I can recall was an uncredited piece of network code that fell under the BSD license. That violated the author's copyright - not patent, just copyright - but was resolved. Oh, and some jerk tried to trademark the word "Linux" for an OS, suing Linus and a whole bunch of distros for trademark infringement. The thing was settled out of court, IIRC, with the a*hole actually getting his money back for the trademark filing. (That's like a convicted blackmailer demanding the victim reimburse them for the cost of postage.) The other terms of the settlement were sealed.
Linux uses stuff donated by SGI and IBM, but that code has been clensed of any IP. Both companies went through a lengthy - and impressively transparent - process to really illustrate just how clean the code was. The only stuff that's even remotely suspect is the NUMA code, but since that was one of the prime targets for SCO, you can be certain it has been gone over with a fine tooth-comb by patent lawyers and coders on both sides of the fence. Nothing has been found, because there's nothing there to find.
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Re:Really? (Score:5, Informative)
Excuse me??? Microsoft took out a patent on sudo. Yes, I realize that this patent should have been shot at the gate, but right now sudo violates a patent that was probably written by somebody who was in diapers when sudo was first written.
The fact that a patent is absolutely assinine and should never have been granted may lessen, but does not remove it's chilling effect on Linux development. That's part of why it's so important to leash (if not put down) the software patent industry.
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Maybe Linux has violations in it.. (Score:4, Interesting)
Re:Maybe Linux has violations in it.. (Score:5, Insightful)
"..but don't they lose the right to sue after it has infringed openly for some time?"
In a word, no. Patent violations are given no free pass if the holder chooses to ignore the violation up until the last hour.
"Hell, it might even count as previous art against some of the more frivolous (ie most) software patents."
It is true that Linux MAY contain prior art for some patents. But the costs of defending against a patent attack run at least $500,000. That's a pretty big chance to take for individual developers. Now companies like IBM, might take a different view.
Cheers,
Slak
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Re:Maybe Linux has violations in it.. (Score:5, Interesting)
Since there are no software patents in Europe right now, it would stand to reason that the Linux kernel would be prior art for any software patent filed after the inclusion of that feature in the kernel, if the ruling allowing them passes. Any existing development would be safe, but future development would run the same risks that development in the US faces now.
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Re:that is trademarks (Score:5, Informative)
Not really true -- except maybe for the IANAL part, I don't have any info either way on that...
There is a concept in the law (U.S. law, at least) called laches -- basically, the law acknowledges that it is simply "unfair" for a patent holder (or any other rights holder, for that matter) to recognize that someone else is doing something wrong, and simply wait until the other guy has racked up damages, or whatever, before suing them. If a rights holder (such as a patent owner) waits too long to sue, he could lose the right to assert that patent against that particular infringer. The infringer could raise a laches defense, and if the court agreed that the patent owner "sat on his rights" for too long, the court could throw the case out.
Now, how long it too long? There isn't a set amount of time, it will depend on the overall "fairness" of the situation. It's not like a statute of limitations, where there is a hard line after which you can't take action -- rather, this is an "equitable" defense, where the court basically says, "yeah, Mr. Patent Holder, you do have a case here, but you waited way to long to bring it, and now it just wouldn't be fair to sue the defendant after all of this time."
An example would be holding a patent, seeing your competitor build an infringing product, and then waiting for 6 or 7 years for the product to take off in the marketplace, then suing once the company has made some money and racked up damages. That would be an example of where laches would come in -- if you wanted to protect your invention, you should have sued when you realized the infringing activity was taking place -- waiting for 6 or 7 years to rack up damages just wouldn't be "fair" to the other guy.
But again, that doesn't mean there is a statute of limitations are anything -- as long as the patent is still valid, you can sue someone who has been infringing for 10 years, as long as you only recently found out about the infringement. And even if you are barred by laches from asserting your patent against one guy, that doesn't mean your patent is invalid -- you can still go after other infringers.
This goes for patents, copyrights, trademarks, etc. It can also apply to torts, breaches of contract, really ANY type of court case -- but in most cases, the statute of limitations will kick in before enough time passes for a laches defense to be successfully raised. However, in certain types of cases, even a very short delay -- a couple of months even -- can be enough to raise a laches defense.
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"An expert"? (Score:5, Insightful)
-ben
Re:"An expert"? (Score:5, Insightful)
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Making Loud Noises while Stalking your Prey (Score:5, Insightful)
They understand that sueing open source projects at this point would:
* Scare away the Europeans from adopting software patents and turn them into an open source safe-haven by creating a good public case against software patents.
* Have no financial benefit whatsoever.
If Linux/Open Source projects/foundations haven't been sued yet, it's because it is currently being stalked by a hungry pride of lions who want to gaurantee they capture their prey.
Antelopes are skittish for a reason.
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Never going to happen (Score:5, Insightful)
Lousy article (Score:5, Interesting)
This would halt the entire software industry (Score:5, Insightful)
The EPO has already illegally granted over 30,000 software patents in Europe. Because these patents are illegal they cannot be enforced in court. But this means that the european software industry doesn't care about these illegal patents.
If software patents are legalized, these illegal patents suddenly can be enforced in court.
It is likely that the european software industry will come to a standstill for years after software patents have been legalized, as they have to spend their resources fighting in court instead of doing research and innovation.
Patent articles on patents (Score:5, Insightful)
I will then own the rights to ever have an information page on any patent stored electronically. This is called legislating yourself back to the stone age but is theoretically possible in the age of free-for-all software patents.
Heavy assertion (Score:5, Insightful)
There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged.
This looks to me like the FUD we have been hearing for a while now. This kind of repetitive rhetoric (argumentum ad nauseum) serves one purpose: to instill in the minds of decision makes in the IT industry (those who hold the strings of the pruse, or those who recommend purchases to them) that they are at risk if they chose Linux.
If there are violations let us see them! Show us!
The worse that can happen is those portions will be recoded to be patent free in days or weeks.
Microsoft in Violation of Patents? (Score:5, Insightful)
That said, it seems obvious that the MS kernel, like probably all other kernels, contains IP violations. The difference is that only the FOSS kernels are open to public scrutiny.
So commerical companies can keep their IP violations largely secret, while FOSS ones get vetted publicly. Anyone wanna bet whether a closed kernel or open kernel has more IP violations? Does anyone believe that the MS kernel is completely free of IP violations? Anyone wanna buy a bridge?
Could I get some help here? (Score:5, Insightful)
I've been Googling for acknowledgement of Linux kernel patent violations. Other than statements by SCO, I haven't found any.
Does anyone know what Jeremy Mark Malcolm was talking about when he wrote: "There is no question that some of the open source software that is out there -- such as the Linux kernel itself -- has got patent violations in there. That is acknowledged."?
He is described as "an information technology lawyer specialising in Internet-related law...". Could this just be twisty English, saying that: Some open source software is acknowledged as having patent violations and that The linux kernel is an example of open source ?
Could this be FUD? (Score:5, Interesting)
How about forced Open Source? (Score:5, Interesting)
I mean:
* You can't determine prior art if all the software is closed source.
* You can't defend against patents if your prevented from showing the prior art.
Therefore in exchange for patents, all software must be open source. Not just the patented bits (because unpatented bits may be prior art for future patents) - all of it.
That would fit with the Vacuum cleaner/Steam engine model, since as soon a Dyson puts out a new Vacuum cleaner its obvious from looking at it how it works. So it would put software in the same position.
Re:Why does everything has to be patented?? (Score:5, Insightful)
Once software patents are valid throughout the world the current tech status quo would have no incentive to innovate. Technology will come to a stand still. Prices will rise. And we will all suffer.
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Re:Why does everything has to be patented?? (Score:5, Insightful)
Ostensibly, the patent system is to incent inventors to make new creations. Historically, there is no empirical support for the idea that this is necessary or even useful, but it makes kind of a rough intuitive sense: commercializing an invention takes work. Why would somebody do that work if anybody could simply copy the idea?
Well, the answer is, to stay ahead. Historically, when patent protection was weak (as it was until the start of the 20th century in the US), companies innnovated like mad, trying desperately to keep their new methods secret fora few months longer to exploit a short term advantage. This is not a pleasant life if you're an investor: it's much easier and more predictable to milk a cash cow.
Overall, while patents do probably help inventors somewhat they also hurt them in other ways. Creative people have a dual relationship to ideas. They create their own, and they make use of others'. Invention is both a process of originality and derivation.
Period.
It follows that creative person's relationship to intellectual property has a kind of balance to it. Creative people would benefit from a balanced patent system which had high standards for "originality" (which is inherently fuzzy), relatively few patents are granted, and they persist for relatively limited terms -- long enough for the inventor to be able to sell and profit from his services, and not any longer.
However investors who hire probably the majority of inventors these days, do not have a balanced interest in intellectual property. It's entirely unbalanced. For investors, exploiting a monopoloy on past innovations forever would be simple and easy, and if innovation stopped, it wouldn't matter as long as they got in the door in time.
The whole software patent things stinks of a land rush. They're going to divvy up and privatize knowledge of how to do things, and then squat on it for as close to forever as they can manage. If innovation grinds to a halt as a result, it won't matter, because they'll have their cash cows.
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Re:By who? (Score:5, Funny)
Time for my medication already?
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Re:illegal activity (Score:5, Insightful)
The problem here is (or at least this is the belief held by many) that it's nearly impossible to write software without unknowingly violating a patent. This leads to the inevitable conclusion that Linux, Windows and every other large software package probably violates various patents.
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Re:You would think that the EU would wake up (Score:5, Insightful)
Yeah, tens of thousands of software engineers will probably lose their jobs.
But who cares about sleazy people like them? They only research and innovate instead of doing something productive.
The good thing is that we will get a lot of new jobs because of this. Thousands of fine patent lawyers will get new jobs.
</SARCASM>
There is a reason that 47% of the swpat-positive replies to the hearing that the European Commission held were from patent lawyers and patent offices. [eu.int]
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