Munich's Linux Migration Raises EU Patent Issues

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."

How does Closed-Source make this better?

[tmasssey]

If Windows is infringing on a patent, how is Munich protected? Closed Source, Open Source, whatever: if you steal a patent, you're in trouble. Either way.

Is Closed Source better just because it's harder to *know* when you steal?

Re:What's the problem here?

[r.jimenezz]

I think the way in which the article was submitted to Slashdot is good (i.e. the "department" Timothy put it in and the submitter characterizing the issue as "a bump".

Unfortunately, the article's body is a bit less objective and states the project "was placed in jeopardy". Not that I understand much about German law, but it seems to me as if the Green Party is simply making sure that eveything is being contemplated. Notice that both alderman Muehlhaus and Mueller, the Party's spokesman, are pro-open source.

I think this is in fact good for the project. This goes to show that the patents issue (worldwide, not only in Europe) is becoming a growing concern for more and more sectors. Seeing that they are being careful about this actually makes me think they remain very serious about seeing this project get finished well.

So, to address more directly your question: it is not about a particular patent causing problems, it is about being warned that the situation may eventually arise.

And so it begins

[nurb432]

And you all thought Microsoft was just collecting patents for defensive reasons..

Just wait.. this is only the beginning of IP concerns that may derail the freedom to compute..

Re:So would MS software be immune?

[justsomebody]

No, it suggests taht Germans should reconsider their vote about patents.

Last time they voted German representatives voted for the patents (after all their talk how they are against them, they were satisfied with few minor corrections of original proposition and voted YES)

btw. If I remember correctly Eric Raymond said that those little changes would do even more damage as original proposal

Mod parent up!

[JohnQPublic]

I think this is in fact good for the project. This goes to show that the patents issue (worldwide, not only in Europe) is becoming a growing concern for more and more sectors. Seeing that they are being careful about this actually makes me think they remain very serious about seeing this project get finished well.

That's an excellant point. This isn't necessarily a bad thing for Open Source. In fact, as things stand, it sounds like it's in Munich's best interest to press for an anti-patent answer from the EU. And as the parent notes, the two named individuals are pro-source.

Re:So would MS software be immune?

[henrik]

Microsoft has enough money to buy off the patent holder, either by licensing, cross-licensing, buying up all stock and closing down shop, or otherwise acquring the patent.

City of Münich may not have the ability to be able to spend that much of tax payers money on licensing. Neither the open-source developer most likely.

Re:So would MS software be immune?

[ron_ivi]

Even more that Eolas, the Timeline [winnetmag.com] patents that Microsoft infringed upon cost Cognos 1.75 million [timeline.com] just because Cognos used Microsoft's infringing components.

I hope Munich carefully audits all of Microsoft's source code before deploying it as well.

Re:Contracts and commercial law

[colinrichardday]

Munich didn't get its Linux by downloading ISO's, it got that Linux from IBM and SuSE (now part of Novell). I suspect those companies can handle such problems.

Re:What's the problem here?

[A1kmm]

I don't see how this is specific to OSS. After all, the same could be true about any software, Free, free, commercial, open, closed, in-house, public domain, etc... There are so many patents, many of them vague, out there, and no company or government(not even those departments dealing with patents) knows them all. Combine this with the fact that every line of source code could violate multiple patents given the simplicity of patents, and the combination of certain lines of code could also violate patents while each line by itself doesn't. So to check a program of size n against a patent database of size m is takes at least O(2^n m) of human resources. No one can supply this much time for any realistic software. Hence, we can never be sure that software we use doesn't violate any patents.

Clearly, whatever platform they are currently using faces the same problem, so unless they have identified a specific problem, this should not affect the migration.

I didn't know that proprietary software was imune

[Anonymous Coward]

This is absurd on the face of it. Open Source software is no more susceptible to patent infringement than proprietary software. This is pure FUD.

OSS patent violations get fixed quickly

[Entropius]

As everyone has pointed out, patent violations can be found in all sorts of code.

However, the OSS community has historically been quick to write certifiably clean replacements for any code that has even a slight chance of being tainted.

Re:What's the problem here?

[thrillseeker]

I don't see how this is specific to OSS. After all, the same could be true about any software

The difference is that OSS doesn't have the luxury that closed-source does of being able to hide its kitty litter - everything is in the open is OSS by its very nature. Closed-source may operate for years with no one being the smarter that multiple patents are being violated.

Re:Contracts and commercial law

[jbr439]

Is it not true that Microsoft's EULA basically says that the most you are guaranteed is getting your money back with the return of the product? Is so, there is no real difference with open source software. And indeed, it can be argued that it is worse with MS's since you would then be in the position of not having the software to access data that is most likely in some proprietary format.

Re:So would MS software be immune?

[Jim McCoy]

I hope Munich carefully audits all of Microsoft's source code before deploying it as well.

You have reached the heart of the problem, but have it backwards because you don't understand how the law works. If Microsoft infringes upon someone else's patent then _Microsoft_ is responsible for satisfying the patent holder and for providing the same or equivalent product to the customer. If some bozo check in some Linux code that is later found to violate a patent then the city of Munich is responsible (because they have no indemnification from the software provider.) Notice the difference?

As much as it may suck, this is one of the things which you get when you actually pay for your software. Perhaps it is the only thing of value, but in the biz world it is important to have these uncertainties taken care of (especially when you are a deep-pocket target for various bottom-feeders...er, make that fine, upstanding members of the legal professsion...)

Re:How does Closed-Source make this better?

[Ogerman]

Is Closed Source better just because it's harder to *know* when you steal?

First of all, patent infringement is not stealing, so refrain from using that silly, emotionally-loaded misnomer. Secondly, it's hard to *know* about patents regardless, whether the software is open of closed. Most patent infringement occurs accidentally. It's not like copying somebody's elses code -- where you know you didn't write it yourself. If you try to analyze any given piece of open or closed software, it will take you years of professional research to determine whether it bumps into any patents. Having the code doesn't even usually matter because most patents cover tiny aspects or nuances of functionality. This is why software patents themselves are so bogus -- they are all, by definition, trivial. In fact, they're so trivial that it's usually hard to even find them! (hence the term "patent minefield") The state of the art in software is advanced by millions of trivial, evolutionary steps forward. None of those steps deserve monopoly rights.

Why do they think patent only affect FOSS?

[walterbyrd]

The only time that I know of end users being sued for a patent violation, was in the case of msft's sql server.

Why do they think that FOSS is more suseptable than proprietary?

Unless, they are afraid of a particular propriety software company, which has been filing about 10 patents a week lately (almost all for stuff they didn't invent).

Re:What's the problem here?

[B747SP]

OSS doesn't have the luxury that closed-source does of being able to hide its kitty litter

That, and the bit where if you buy closed-source software, and it turns out to have some form of dodgy encumberance, then there is someone to.. ah.. how-you-Americans-say-in-your-language?..ah-yes... point the lawyers at. You generally don't get left holding the bag all on your own.

As the saying goes, if OSS software breaks, you get to keep both pieces (however in this context, the patent holder may well like to have his piece back :-(

All together now... "software patents are evil".

I think you're wrong JohnQPublic

[walterbyrd]

Don't know where you got that legal theory, but it doesn't seem to supported by evidence. Certain end users of msft sql server were sued because of mfst's patent violation. I've never of heard of that happening with FOSS.

IANAL, JMHO, etc.

Re:Contracts and commercial law

[Alsee]

The problem is that if GPL software was covered with a patent, it was illegal to distribute in the first place, and likely illegal for someone to use.

Dumb argument.

Even ignoring the absurdity of software patents, if Windows is covered with an unlicenced patent, it was illegal to distribute in the first place, and likely illegal for someone to use.

-

Re:This idea is GENIUS!!!

[0racle]

Except if there is a problem, the response would more likely be to stop the adoption of the problem software as opposed to changing laws.

Re:I didn't know that proprietary software was imu

[Wolfbone]

Not so - they are less of a target for patent parasite companies but sitting ducks for monopolisitically inclined companies seeking to exclude competition.

Re:What's the problem here?

[ilikejam]

We're talking about software *patents* here, not copyright. The lines of source code don't matter in a patent case. If your software does something which is patented, then you are infringing on the patent no matter how it's implemented. No-one can hide from the patent lawyers, because it's the end result of running the code, not the way the code is written.

Practicality?

[Tellalian]

I've never really understood the practicality of software patents. With closed source, a patent holder usually can't check the code to see if the software is infringing. With open source, it might be easier to tell, but there's less likely to be revenue to collect "damages" from. Is there a point to software patents?

Its all in understanding the purpose of patents ..

[3seas]

...and then understanding when and where this purpose is being abused, contridicted or even out of date with the changing world economy.

Here are some patent information clips from the USPTO [threeseas.net]

Note the last paragraph: "Protection of industrial property is not an end in itself: it is a means to encourage creative activity, industrialization, investment and honest trade. All this is designed to contribute to more safety and comfort, less poverty and more beauty, in the lives of men."

And consider how FOSS supports that better then what MS has been proven to contridict that, in courts around the world.

Re:OSS patent violations get fixed quickly

[rmohr02]

Patents refer to the algorithm by which something is done. I believe you are referring to copyright, which is the letter of how something is done. For copyright violations, a developer can simply look at a spec and re-implement it without looking at the original. For patent infringements, a different algorithm must be found.

Re:Contracts and commercial law

[nathanh]

Open Source is great, but as the licenses make clear, *you* wind up holding all the liabilities.

Says who? Darl said this 1000 times and now we have people like yourself parroting it, but I've yet to see anybody with legal knowledge state the same thing.

text of original press release

[FlorianMueller]

The TechWeb article is basically correct except that I'm independent and not a general spokesperson for the Green Party other than working with them (and others) on software patent issues.

Here's the text of the original announcement:

EU Software Patents Jeopardise Munich's Linux Migration

MUNICH, Germany, July 30 /PRNewswire/ -- When the city administration of Munich decided to migrate its IT infrastructure to the Linux operating system, it made headline news around the world. That project is now being threatened by a proposed European Union directive on software patents. The directive is pushed for by the governments of Germany, the UK, France, and other countries on the EU Council.

Software patents are considered the greatest danger to the usage and development of Linux and other Free Software. A cursory search revealed that the Linux "base client", which the city of Munich plans to install on the desktop computers of approximately 14,000 employees, is in conflict with more than 50 European software patents.

Today Jens Muehlhaus, an alderman from the Green Party, filed two motions in which he calls on the mayor of Munich, the Social Democrat Christian Ude, to contact the federal government of Germany on this matter and to analyse how the EU software patent directive affects Munich's Linux project. The politician, a supporter of open source, warns that patent infringement assertions could take entire departments of the city administration out of operation. Mr. Muehlhaus expresses concern over the future ability of open source software to meet the needs of the city administration if software patents massively hinder its development. Related caveats have been voiced by the SME association CEA-PME and by Deutsche Bank Research.

A week earlier, the chief information officer of Munich, Wilhelm Hoegner, said it is "indispensable" to check on the consequences of the software patent directive to open source software. Any such oversight would be a "catastrophe for Munich's Linux migration project, and for open source in general".

Florian Mueller, an active participant in the software patent debate, sees the EU Council on the wrong track: "Open source is a historic opportunity for Europe to save costs and create jobs. Schroeder, Blair and Chirac should demonstrate leadership and stop their civil servants from sacrificing the open source opportunity to the insatiable patent bureaucracy, lest some large corporations will shut down open source and many SMEs." Mr. Mueller is a software entrepreneur, and an adviser to Europe's largest open source software company MySQL.

Re:EU

[Teun]

People are incredibly ignorant. They allow an autocratic EU state to build, develop, and continually assume that everything will be ok.

I should not reply as you are a Troll.

Yet to a large section of especially the British public you sound credible.
Believe it or not but it is an unholy alliance of the British and French that has till now prevented the European Parliament to get the power a Parliament needs.

Ofcourse all in the name of "Sovereignty" of the National Parliaments/Governements.
But in reality just to keep the European population from setting truly super nationalistic goals through their elected European Parliamentarians.

The powerful Council of Ministers should/could then become like a Second House of Parliament or Senate to reflect on the decisions of the Parliament of all Europeans.

But I'm afraid that as long as the UK with it's presently rediculous press is part of the EU this will not happen, the French governement is tough on this subject but at least the French people could, not being exposed to the British-style gutter press, be convinced to support a European Parliament.