Weblog:		Dear Alex, tell me the future
Subject:		What good is "owning" somthing if you don't have the right to use it?
Date:		2004-02-01 14:58:45
From:		nzheretic
To those "friends" who state "Others have said that until there is an Open Source (non-GPL) alternative to linux that there will continue to be work for us to do, and that once the nature of the GPL license gets tested in court and the public understands more about what it does, they will want to replace Linux with something they actually own.", I ask: What good is owning something if you do not have the right to use it? The new BSD license, which is the most liberal of open source licenses, does not grant the downstream users any right to actually use any patented methords that upstream developers include in the code. In 1981 US courts ruled that software and business methord could, without legislation ot the contrary, could be patented. From 1981 to 1989, with a few exceptions the entire software industry just ignored the issue of software patents. Challenges and Strategy -Bill Gates Email Memo 1991 http://www.theworld.com/obi/Bill.Gates/Challenges.and.Strategy QUOTE Category 3 ---------- This is a category of challenges we face that I don't feel are widely recognized. PATENTS: If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique. If we assume this company has no need of any of our patents then the have a 17-year right to take as much of our profits as they want. The solution to this is patent exchanges with large companies and patenting as much as we can. Amazingly we havn't done any patent exchanges tha I am aware of. Amazingly we havn't found a way to use our licensing position to avoid having our own customers cause patent problems for us. I know these aren't simply problems but they deserve more effort by both Legal and other groups. For example we need to do a patent exchange with HP as part of our new relationship. In many application categories straighforward thinking ahead allows you to come up with patentable ideas. A recent paper from the League for Programming Freedom (available from the Legal department) explains some problems with the way patents are applied to software. UNQUOTE The 1991 paper from The League for Programming Freedom can be found here http://lpf.ai.mit.edu/ As Bill Gates rightly stated " If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today". The Silicon valley revolution would not have taken place. From 1991 to 1997, the major software vendors slowly began build software patent portfolios and entering into cross licensing arrangements and most of the smaller vendors still ignored the issue entirely. From 1997 on, driven by the greed of the Venture capitalists of the DotCom era, vendors and other groups began gobbling up businesses based not upon the current business viability, but the so-called intellectual property the business held. Most in the software industry still ignored these third party parasites, but larger vendor also began expanding their software patent portfolios. Complex cross licensing arangements are increasingly becoming a legal quagmire. Microsoft is facing a number of lawsuits from companies which Microsoft did enter into a formal relationship, for example Timeline Inc http://www.theregister.co.uk/content/53/29419.html SCO is also suing IBM based upon the exact same class of legal cross licensing relationship that Bill Gates suggested as a solution to patents back in 1991. While software patents remain a threat to the entire software industry, including Linux... http://www.pcworld.com/news/article/0,aid,114458,00.asp ..., many companies, including IBM, HP, SUN, Oracle, SAP and Novell are turning to a simpler form of cross licensing arrangement - the GNU General Public License, or GPL and LGPL. Only the GPL and LGPL so-called "viral" licenses effectively grants all downstream users the right to freely use the sofware. A license that even the largest of patent portfolio holders, such as IBM, are adopting to collaboratively develop new software. This, along with customer demand, is the major reason that Linux is being widely adopted and not one or more of the BSD based distributions. Similar so called "viral clauses" are also part of Java Community Proccess(JCP) Java Specification Participation Agreement (JSPA). Any corperate or individual contributer to a JSR must also grant implementers the right freely use any intellectual property with the terms of the JCP. It if you want to talk about licenses that "own", check out the terms and conditions of the leading opposition EULAs ... http://www.opensource.org/advocacy/shared_source.html