Defense against Patents

[Lawrence E. Rosen]

Eben,

As usual, we have more in common than we have differences.  We both seek
to protect the free and open source software community from patent
litigation.  But I think it is you that is underestimating our ability
to use GPL-style restrictions to provide that shield.

I'm sorry now that I accepted your initial hypothetical.  If we demonize
Microsoft in this discussion we'll just waste everyone's time.  Instead,
we should consider *any* patent holder alleging that our software
infringes its patent.  It could, for example, be HP alleging that we
infringe their patents rather than Microsoft suing HP.  The fact is
that, with so many patents being issued (yes, most are bogus; sing it
the world, but that makes little difference to the equation) and so much
software being written, it is inevitable that company X will allege that
free software infringes patent P.

You argued that "Those who want royalties don't sue independent
developers because the costs of suit exceed by orders of magnitude the
available gains."  That ignores the reality that the cost of a patent
suit against someone who has no money to defend is minimal.  You won't
be facing art pulled from searches all over the world, you won't be
faced with depositions all over the place, you won't be faced with
experts who have to be deposed, etc. -- all, of course, due to the
defendant's lack of $$$.

[Just yesterday I got a call from an open source developer facing a
cease-and-desist letter from a big company over a business method
patent.  That person can't afford any defense whatsoever, even at my
discounted rates!  He's simply going to withdraw his GPL-licensed
software from the market.  The cost of that patent litigation was a $.37
stamp and a free 1/2 hour attorney consultation.]

I'm not influenced in any way by a private remark by a Microsoft
strategist that they won't sue "garage inventors."  That promise is not
worth the paper it should have been printed on, and it doesn't obligate
anyone, not even Microsoft, to truly leave our developers alone.

The comparison to DeCSS is also inappropriate.  The last thing this
community needs is a series of such lawsuits in which court decisions
drive our software underground.  I want companies like HP and IBM and
many others to use and distribute free and open source software with
confidence and not to sneak it off the Internet in the dead of night.  

I understand that Microsoft would be foolish to sue its own customers.
That again highlights my mistake in accepting your hypothetical naming
Microsoft.  Company X may be willing to sue Microsoft's customers, or
IBM's customers, or HP's customers, if by doing so it protects its
patent monopoly.  You asked: "When was the last time you saw a
patent-holder trying to collect royalties from consumers?"  I've heard
it happens all the time.  In the past, most consumers (e.g., customers
of the software licensor) in such situations sought indemnity from their
large vendors or otherwise stopped buying and using infringing goods.  I
don't want that to happen to free and open source software.

So let's bring this back-and-forth to a close.  We both agree that a
comprehensive and effective patent defense strategy is needed.  We
disagree about the effectiveness of the GPL defense strategy -- but at
least we have GPL § 7 in our favor for some things.  Let's now encourage
discussion to go beyond that provision to a working patent defense
provision that will cut our enemies off at the knees.  

/Larry Rosen


Eben Moglen wrote:
> Yes but no.  
> 
> Let's begin, before disagreeing, by agreeing.  I haven't said 
> that the measure represented by GPL 7 is enough; that's not a 
> conclusion I am yet prepared to draw.  Deciding how and to 
> what extent to invoke other forms of defense against patent 
> assertions is very important in the further development of 
> free software licensing.  I don't mean to rule out other 
> measures; what we intend to do in GPLv3 is still uncertain. 
> But you underestimate the problems of the patent plaintiff, 
> and also underestimate the contribution GPL 7 makes to making 
> those problems worse.
> 
> We need to differentiate between two kinds of patent 
> plaintiffs: roughly, Microsoft and everyone else.  Everyone 
> else wants royalties; Microsoft wants to stop free software.  
> In fact, it is Microsoft that has people worried.  But 
> Microsoft's choices are no better than the other fellows'.  
> We need to take both branches of the analysis.
> 
> Those who want royalties don't sue independent developers 
> because the costs of suit exceed by orders of magnitude the 
> available gains. Those who want to stop free software don't 
> sue independent developers because bringing thousands of 
> Goliath v. David actions is bad public relations for a 
> monopoly.  You and I have both heard the relevant Microsoft 
> strategist, in a confidential industry forum, disclaim any 
> intent to sue "garage inventors."  It's not trust, but an 
> accurate estimation of the inevitable consequences, that 
> causes me to believe her statement.  So far as equitable 
> relief goes, an injunction against the distribution of free 
> software is useless: ask the movie industry. The studios 
> spent more than $12 million trying to enjoin the distribution 
> of DeCSS; they won almost every case, and the software is 
> ubiquitous.  Those who want licensing income don't need to 
> spend money getting no royalties, and those who want to stop 
> free software know they can't do what Jack Valenti and 
> Michael Eisner can't do either. No, I don't think injunctions 
> are going to be awarded in US courts against free software 
> products in patent cases.  But it's an empirical
> question: how many preliminary injunctions in patent cases 
> did you see awarded in the district courts last year?  That 
> just isn't how it goes.
> 
> If you want licensing revenue, suing banks, insurance 
> companies and manufacturing firms may be a good idea, but if 
> you're Microsoft, it's a terrible decision.  Those people are 
> your customers, and if you sue them you make them angry at 
> you.  Ain't gonna happen.  And collecting royalties from 
> those who use products infringing patents, as opposed to 
> those who sell them, is theoretically possible, but only 
> just. When was the last time you saw a patent-holder trying 
> to collect royalties from consumers?  
> 
> May I whisper something in your ear?  Most software patents 
> are invalid.  You know it, I know it, the patent-holders know 
> it.  Patent assertion in the area of software is a bluffers' 
> game, and it works because parties cross-license rather than 
> challenging.  What GPL 7 does is to make the likelihood of 
> challenge much higher, because the opportunities for 
> settlement are artificially constrained.  That means the 
> patent-holder faces a different payoff matrix, and plays the 
> game differently at the margins.  There are nuances and 
> refinements to this analysis, not all of which I want to talk 
> about publicly, but I stand on the proposition--which is not 
> all that strong or surprising, really--that GPL 7 has some 
> subtle effects on the environment for potential patent 
> claimants, and that those subtle effects have been important 
> in preventing assertions and litigations.
> 
> Which brings us to the real point: I'm not just guessing, 
> I've been there.  Even specious software patents weren't 
> invented yesterday, and we've got a little experience with 
> what happens when the game plays out.  I can think offhand of 
> eight GPL'd programs, three of them stalwarts of everyone's 
> operating environment from day to day, that have been the 
> subject of someone's intended patent holdup at one time or 
> another.  Each patent-holder presenting a claim has found 
> that the usual "roll over and license" approach wouldn't be 
> taken by the big boys, because of GPL 7, and each holder 
> eventually thought better of trying to sue.  I didn't learn 
> that GPL 7 protects against patent actions by reading the 
> license; I'm not that clever.  I learnt it by watching what 
> actually happened in the world.
> 
> Now, once again, I'm not contending that more strenuous forms 
> of defense are a bad idea.  They may work; they may not.  I 
> quarrel with no one who wants to invent a better mousetrap.  
> I simply say that our mouse-deterrer has kept the rats away 
> so far, and it is worth a second look by those who want 
> something practical right now.  
> 
> Best to all,
> Eben
> 
> 
> On Friday, 21 March 2003, Lawrence E. Rosen wrote:
> 
>   Eben,
>   
>   Your analysis of how the GPL might protect software from a 
> patent threat
>   is not realistic.
>   
>   You hypothesized, solely for discussion purposes, that 
> Microsoft has a
>   patent that reads on some portion of Linux.  You suggested that
>   Microsoft would not go after the open source programmer 
> (his pockets are
>   too shallow) but would go after, say, HP instead.  Because 
> of the GPL §
>   7, you concluded, HP would not be able to construct a 
> private settlement
>   but would have to defend everyone's right to practice the patent.
>   
>   But why would Microsoft go against HP and risk HP's funding 
> litigation
>   to invalidate the patent?  That is not typically how such patent
>   disputes resolve themselves.  Patent holders often try to 
> assert their
>   claims against little guys first.  That way they can get quick
>   settlements that establish a de facto legitimacy to the 
> patent without
>   risking a big-bucks defense.  They litigate slowly up the 
> food chain,
>   not down it.  
>   
>   Alternatively, Microsoft could forget a lawsuit against HP 
> and proceed
>   against HP's customers directly -- the banks, insurance and
>   manufacturing companies that infringe through their *use* 
> of patented
>   technology.  Such companies don't usually have technology 
> patents that
>   they can use as bargaining chips.  Also, as you well know, 
> there is no
>   indemnification or warranty of non-infringement in open 
> source licenses.
>   Merely chilling the acceptability of our software in the eyes of our
>   customers would be a dreadful defeat for us.
>   
>   And why would injunctive relief not be appropriate, even 
> against little
>   guys?  When arguably infringing software is distributed for 
> free there
>   is no reasonable measure of monetary damages.  As you know, 
> that is one
>   of the criteria courts use to judge the appropriateness of 
> injunctive
>   relief.  If you can knock out the key developers of an open source
>   project because of the threat that they will lose their 
> houses and their
>   software (unrealistic though that threat might be to those of us who
>   understand real litigation in real circumstances), wouldn't 
> that suffice
>   to chill the use of patented technology?
>   
>   I'm sorry to say that the GPL's defense against the patent threat is
>   weaker than we can afford.  We need something stronger.
>   
>   /Larry Rosen
> 

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