Free software and software patents (was Re: the skinny -- a LEGAL *nightmare*)

[Richard Watts]

[ this should probably be moved to the other list, whatever it's
called ... ]

On Friday 26 November 1999, Seth David Schoen
<schoen at loyalty.org> wrote:

>Nelson Rush writes:
>
>> I see a few problem areas.
>> 
>> Section 2 describes the inclusion of patented software algorithms as being
>> allowable. Now there might be "open source" certified licenses that allow
>> this, but I believe there should be a clause that says patented algorithms
>> are not compatible with this license.
>
>I can't think of _any_ open source license which forbids the use of
>patented algorithms within the source code base.

 And I think there's a good reason for not doing so: free software is
winning against proprietory software in part for the same reason that
IP protection for foreign nationals won in Asia in the 60s and 70s -
free software is cheaper, because it doesn't have IP-related costs
attached, and proprietory software does so it's more expensive. So
free software wins.

 If you agree with this argument, anything that makes free software
less available than proprietory software (like mandatory
patent cross-licencing) is a lose.

 So, the way to address this issue is to get the major patent holders
to attach warranties to free software projects saying something like
`we will not enforce any of our patents against open source software'
- this not only protects the software that exists, but encourages
others to make their software free (since if they don't, they'll
potentially fall foul of the patent holder), and adds value to the
free software (`use free software and you won't have patent
problems').

 IBM strikes me as a company that might be persuaded to do this, and
 it would be a really big win, given the number and scope of the
 patents they hold.

 A patent pool and defence fund made over to the OSI with which to
 defend and countersue on free software actions would be wonderful,
 but I don't see it happening. Nevertheless, if the OSI has enough
 money, a patent pool might be a sensible idea.

[snip]
>It seems to me that forbidding the use of any technique which to which
>someone, somewhere _claims_ an exclusive right would mean forbidding all
>software development.  Banning patented or allegedly patented algorithms
>in free software projects would simply be giving in.  And certainly not
>all countries' laws recognize software patents at all, although there are
>ongoing efforts at "harmonization".

 Agreed. FWIW, Europe is likely to start issuing software patents per
 se in 2000 or 2001.

 (anyway, as Seth says, releasing free software could well be
regarded as an implicit grant of licence to use the patents involved -
not that this would help you much if the person who released the
software didn't control the patent rights).

[snip]


Richard.