Munich's Linux Migration Raises EU Patent Issues 164
J ROC writes "Techweb has a story about the German city of Munich's Windows-to-Linux migration. It appears the move to replace 14,000 Windows desktops with Linux has hit a bump. Green Party alderman Jens Muehlhaus, who is a supporter of open-source software, has petitioned the mayor to examine the status of software patents in the European Community. The issue involves a proposed directive on software patents that is being considered by various European governments. Muehlhaus fears that a patent owner could issue a cease-and-desist order against Munich, thus hurting the operation of various city departments."
Contracts and commercial law (Score:5, Informative)
Open Source is great, but as the licenses make clear, *you* wind up holding all the liabilities. There aren't any warranties, and there's no implied fitness for use. If Open Source software violates somebody's patent, it may be possible for them to sue you for infringement. They can certainly sue you to require you to "destroy" your copies of that software.
Hence all the concern about software patents.
Re:How does Closed-Source make this better? (Score:3, Informative)
* Company increases software prices and support and maintainence charges.
* End user pays.
* Company retains profit.
Re:So would MS software be immune? (Score:3, Informative)
MS has been sued for patent infringement and lost multiple times in the past, in at least one case where they blatently appropriated technology that had been revealed under a non-disclosure agreement. However, I agree that their software would be somewhat more immune. But that would be because it is closed source, and except where an API must reveal the underlying technology (eg, the Eolas verdict currently being appealed), much more difficult to establish infringement than when the source code is available. For example, various types of analysis make it extremely likely that the Windows IP stack is based on BSD code. Nothing wrong with that, the BSD license allows them to incorporate it (so long as the source code that very few get to see includes the correct BSD copyright notices). But without the source code you can't PROVE that the BSD code is in there.
Re:So would MS software be immune? (Score:3, Informative)
In a sensible world, this would be tantamount to selling insurance against an invasion by Martians, but things being what they are who knows? The SCO suit against Autozone, last I heard, was stayed pending the outcome of SCOs case against IBM, rather than being completely thrown out as utter nonsense, so perhaps there's some legal theory under which using a product makes you liable for the actions of the product's developers. As obviously stupid as that is.
Re:So would MS software be immune? (Score:5, Informative)
What you say aobut the vendor being responsible would only be true if the infringing vendor had sublicing rights. In Microsoft's case, they didn't: for more info... [winnetmag.com]
Wait... (Score:5, Informative)
And this is different in what way from Microsoft Windows? This is an exerpt from the Windows XP EULA:
Except for the Limited
Warranty and to the maximum extent permitted by applicable
law, Microsoft and its suppliers provide the Product and
support services (if any) AS IS AND WITH ALL FAULTS, and
hereby disclaim all other warranties and conditions, either
express, implied or statutory, including, but not limited
to, any (if any) implied warranties, duties or conditions
of merchantability, of fitness for a particular purpose,
of reliability or availability, of accuracy or completeness
of responses, of results, of workmanlike effort, of lack
of viruses, and of lack of negligence, all with regard to
the Product, and the provision of or failure to provide
support or other services, information, software, and
related content through the Product or otherwise arising
out of the use of the Product. ALSO, THERE IS NO WARRANTY
OR CONDITION OF TITLE, QUIET ENJOYMENT,
QUIET POSSESSION, CORRESPONDENCE TO
DESCRIPTION OR NON-INFRINGEMENT WITH
REGARD TO THE PRODUCT.
Basically what MS warrants is that if the media is scratched or it or the packaging are otherwise defective, or through defect Windows is not able to boot to a state in which your machine is able to perform its basic functions, then you are entitles for a replacement or refund within 90 days.
Beyond that any other warranty depends on how much warranty coverage your juristiction can force Microsoft to provide by law, or in the case of corporate customers on what is covered in a supplimental contract. In the case of legally minimum warranty I am now aware of ANYWHERE in the world that legally forces a vendor to indemnidy its customers from legal action involving patents. However, end users generally are not the target of patent violation cases--patent holders go after the manufacturer/vendor instead (even SCOs cases against Autozone and DaimlerChrysler don't involve patents--and they even skirt around copyright. They are basically contract disputes based on shaky ground).
In any case, Microsoft provides NO MORE WARRANTY than any Linux distributor might for a retail box or ISO download of their product. That being said, a major corporate or government enterprise would negotiate a special contract with the vendor.
In the case of the Munich Linux project, I cannot see how the city of Munich could be stuck with an order to suddenly stop using their software. The worst case scenario would be that the firms contracted to do the project (IBM and Novell) could be told to cease-and-desist Linux operations, which would delay the project or disrupt future expansion or support. I imagine that this would be handled by the contract between the city and IBM/Novell. A big enterprise customer generally is VERY through when it comes to risk management.
They can certainly sue you to require you to "destroy" your copies of that software.
Whatever the details, I've NEVER heard of a case where end users were ordered to destroy ANYTHING because it violates a patent. Could you give an example where, say, not only Red Hat would be ordered to stop distributing a software product due to patent violations--all its customers would be ordered to stop using the product too?
That would be like General Motors suing an aftermarket parts supplier for producing illegal replacement parts for Chevrolet Malibus and be granted the authority to send all registered owners of Malibus court orders to take their cars into dealers for examination and possible replacement of the parts. Such a remedy would be considered ridiculous.
Re:Contracts and commercial law (Score:4, Informative)
The GPL does not preclude you from coming to an agreement with the patent holder.
Basically if it's patented, it can't be distributed under the GPL.
False. You just need the proper permississions from the patent holder.
So as I pointed out, there's no difference. Windows distributers or users are no more and no less illegal than GPL distributors or users for infringing a patent.
The whole thing should be moot anyway. The US fscked up in voiding the Mental Steps doctrine (prohibiting patents for 'mental steps' including calculations and software). There is no such thing as a 'computer implemented invention'. The only thing a computer can implement is a calculation, all software is nothing but a fancy math equation. Any sofware can be run mentally (albit quite slowly). It is absurd to suggest that a sequence of thoughts running that software could ever be a patent infringment, and there is absolutely nothing novel or non-obvious about using an ordinary computer to do it faster.
I am a programmer, a software author. I am protected by copyright. Why should software be the only thing on earth with double protection? Double protection is just broken. Issuing patents on what amounts to mental steps is just broken.
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clarifying the intention behind this (Score:5, Informative)
The FFII (www.ffii.org, just that the website is inaccessible while I am writing this) identified more than 50 conflicts of the Linux "base client" of the city of Munich (from their migration feasibility study) with software patents that had been granted or are about to be granted by the European Patent Office.
For some background information: The European Patent Convention of 1974 does not allow software patents. It excludes program logic from patentability. The European Patent Office has been granting software patents anyway (in fact, about 30,000 already), and now the European Union wants to take a decision on the patentability of program logic. That decision could go in any of three directions:
legalize software patents all the way (that's what some of the EU institutions want, and it's the will of the governments of Germany, UK, France, Sweden and other countries)
abolish software patents entirely (that's what the European Parliament voted for in September of 2003, and that would be best)
continue with status quo (which means that the situation remains unclarified for now... that would not be ideal but still infinitely better than legalizing software patents in the EU)
What the Greens want is for governments such as the German one to consider the implications of software patents to their own IT strategies. It's not just that the city of Munich migrates to Linux. There is a "Migration Guide" book that was published by the German Federal Ministry of the Interior, and in that migration guide they tell, in no uncertain terms, every public administration in Germany that they should migrate to open source as fast and as much as they can. That type of recommendation is reduced to absurdity by simultaneously supporting software patents, which in the opinion of Linus Torvalds, Alan Cox and many other developers are the ultimate threat to Linux.
The European governments have a simple decision at hand: Do we want a competitive environment in which open source and small and medium-sized enterprises can present every purchaser of software (governmental agencies, enterprises, private households) with alternatives? Or do we want an oligopolistic market in which only a few powerhouses cross-license thousands or tens of thousands of patents at a time, and can at their choosing leverage those patents against their competition?
It's another question whether open source is more endangered by software patents than closed source. For the most part, everything that is bad about software patents simply applies to open source as well, just that FOSS is particularly successful at breaking into monopolistic and oligopolistic markets (as the Linux migration project of Munich shows). What comes on top of all of this is that access to source code makes it easier to identify and substantiate patent infringement assertions. In my opinion, that open-source-specific aspect is not nearly as important as the fact that FOSS is a strong competitor to various patent powerhouses.
Generally, software patents simply make software development hugely more expensive. Without software patents, you need to know how to program, you purchase a computer for maybe $1,000, and you can contribute to an open source project. With software patents, you need to play that absurd cross-licensing game, and you can't do that without thousands or tens of thousands of patents, which in turn means that unless you're a multi-billion $ organization, patents are only a risk to you and no protection at all.
EU decision-making timeline on software patents (Score:5, Informative)
Here's the EU situation. They want to clarify and sort of supersede the European Patent Convention of 1974.
The initiative at the level of the European Union started in 1999 when the European Commission started to look into this.
On 02/20/02, the European Commission formally proposed a "Directive on the Patentability of Computer-Implemented Inventions", totally pro-swpat.
On 09/24/03, the European Parliament said No but in a very smart way. Instead of just turning it down, they simply amended it to the effect that it was turned around by 180 degrees. They turned a pro-swpat directive into an anti-swpat directive.
It then went to the EU Council, which is the representation of the EU member states. That's where the responsibility of the government of a country like Germany comes in. On May 18 of this year, the EU Council reached a "political agreement" on a pro-swpat directive. Basically they dropped the essential amendments of the EU Parliament, went back to the text of the Commission, and even went beyond by particularly allowing "program claims". So the EU Council came up with the most terrible legislation of swpats that anyone in the EU has proposed to date.
Now, the press reported on that May 18 thing as though it were a final decision. It's not final at all. It was not a formal vote on May 18, just a tentative vote. The formal decision is now expected to occur on September 24, and in the meantime, the Dutch parliament has made a resolution that the government of the Netherlands should abstain. On May 18, they were in support of swpats, so technically there is no more majority right now but the EU Council procedure is such that the May 18 thing might be passed without a vote (just by no one protesting... they call that an "A item", adopted without debate). Every country that supported swpats on May 18 could still change its mind, including Germany. It's just that they usually don't do that because it would violate an unwritten code of diplomacy. The whole idea behind this "A item" thing is that they want the civil servants of the national governments to work out as many things as possible so that the ministers, who the Council is formally composed of, don't have to deal with each and every issue. The EU passes thousands of laws and regulations every year and the fewest are sorted out by the ministers.
Even if the EU Council were to pass its May 18 pro-swpat directive, that legislation would still not take effect. It would go back to the EU Parliament, and then there is so much that can happen in procedural terms that I'd better stop it for now and let's talk about this if and when we get there
Re:So would MS software be immune? (Score:3, Informative)
Re:What's the problem here? (Score:5, Informative)
To find out that the GIF patent is used in the program without paying royalties one has to either see the source code, or to crack the encryption. In either case it is not trivial, and can not happen accidentally, just because someone was searching on Google, for example. The company can use the patent for free and get away with it.
The OSS has all the code available, and the use of GIF would become obvious and instantly searchable. As big companies amass more and more patents on everything under the sun, OSS will be more and more vulnerable; for sure, all the new things will be locked out of OSS since they will be heavily patented. I am sure MS learned their lesson with SMB, and whatever they are putting into new designs will be both patented and encrypted.
some more background info -- Re:what is going on? (Score:5, Informative)
The EU legislative process involves three different bodies (EU Parliament, EU Commission, EU Council) but the two latter ones are pretty much the same on the swpat issue.
It is interesting to observe that democratically elected representatives of the people have so far taken anti-swpat positions: The European Parliament on 09/24/03 and the Dutch "Tweedekammer" on 07/01/04. However, the EU Commission and the so-called "Working Party" (a committee of civil servants basically) of the EU Council are pro-swpat.
There are three reasons why this is so:
Those civil servants on the patent workgroup of the Council are typically the national patent administrators. They are senior civil servants and some of them are on the controlling board of the European Patent Office. They don't need a pro-patent lobby to lobby them. They ARE a pro-patent lobby themselves. Those people believe that patents are the greatest blessing that has ever been given to mankind, and their own influence and career is linked to the patent system in one way or another.
Large corporations such as Siemens, Ericsson, Nokia, ABB, Bosch and others aggressively push the national governments of the EU member states for swpats. They might pay dearly for that in the end because they aren't really good at making patentable "inventions" in the software space but they believe it just benefits the large companies and they can then cross-license with the other big guys. Those European corporations basically do the lobbying job for the American large corporations that want those swpats even more but can't take as visible a position in the European debate as they'd like to (they do it indirectly through industry associations that they have hijacked, such as BITKOM in Germany). The political influence of those European corporations is huge. If the CEO of Siemens wants to talk to the chancellor (head of government) of Germany, he probably just calls him directly on his cellphone.
There are many companies, particularly software companies (not only in open source!), of small and medium size, which should be concerned over this political development and should collectively run a forceful campaign. Swpats will never be the mainstream political topic that, for instance, the war on Iraq is, but if properly presented, it can be a significant topic. After all, every public administration, virtually every enterprise and a vast majority of all households needs software. However, the management of most SMEs is too unsophisticated in political terms. I'm now making an effort to get some of them to figure this game out. Unless they are ready to join the fray and do something impactful (which is not just minor things like writing open and non-open letters to politicians), they'll lose out all the way. SMEs typically think that they should only focus on their core business and shouldn't ever spend management time, let alone money, on the political front. Large corporations are typically much smarter in that regard (they not only have more resources, they also do understand that politics are a business priority). The shortsightedness of most small and medium-sized companies in this respect is stunning.
It's nothing short of remarkable how successful the FFII and other anti-swpat activists in Europe have been under those circumstances, without a substantial amount of funding!