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[Isaac]

Quote of the editor's comments

"The real issue here is that Microsoft’s generous licensing terms are incompatible with the GPL and hence perceived as a threat to Free Software whose self-serving campaign to abolish intellectual property rights threatens the public with grievous and irreparable harm. I say it is high time these technology pirates have their wings clipped so that legitimate innovation can flourish and real inventors can be rewarded. "

I think the editor's characterization of the Free Software Foundation as pirates is a gross misrepresentation.  I see no evidence that the FSF or other GPL adhererents seek to take the intellectual property of others.

[JimIvey]

I don't have much time this morning, but I'd really like to weigh in on this.  My practice is primarily in software patents and Internet technology.  I'm a former software engineer.  And, I use Linux in my office (and love it!).  So I have some insight into many of the interests involved.

I agree that the GPL is not at all anti-intellectual property.  One of the rights in any property right is the right to not enforce those rights.  In short, you can allow people to walk across your backyard if you like.  You can buy large parcels of wilderness to preserve them as parks and allow the public to visit.  A recent commission on Open Source software in Europe (I think it was WIPO, but could have been the EPO) reported that Open Source was against public policy.  I agree with Lawrence Lessig that this was simply wrong-headed.

On the other hand, FSF, EFF, etc. have rather destructive designs vis-a-vis patents and intellectual property.  Right now, there's a web strike going on against software patents.  See e.g., http://www.gimp.org/ (gimp -- graphical image manipulation program).  They're saying they'll go to jail for writing software and all kinds of hyperbole.   Some such organizations file for reexamination of others' patents (not necessarily a bad thing) and lobby for repealing of patent protection for software (more clearly anti-patent).

I've asked a few people to point me to a single instance of open source software being sued for patent infringement.  I understand CompuServe may have done it years ago in the context of .gif images, but I think such suits are exceedingly rare and Open Source programmers have written code with impunity for years.  

At the same time, many Open Source programmers have "day jobs" working for companies whose product and its profitability are protected by patents.  For example, mozilla was written and maintained by many Netscape programmers working for AOL/TimeWarner.  That division has since been laid off, but for years they fed off a company steeped in intellectual property interests.  Many others are students who will hope to get a job in such a company in the future.  So software patents feed this community, whether they like it or not.

I understand the fear that doing something they love in their spare time (writing great software) might subject them to overwhelming liability.  On the other hand, I understand business's concern that their primary business can be over-taken by some free (as in beer) software being put on the Internet.  I don't have the answer.  But I see what's at stake for both sides.

I wish I had the answer.  I think the best answer right now is publication by the free software community in such a way that patent examiners will find their publications.  I thought SIRs (statutory invention registrations) were the answer, but they're as expensive as a patent issuance!  I think applicants should be able to file direct SIRs for about the combined cost of a provisional applicaiton plus publication -- perhaps a couple hundred dollars.  I imagine free software types might be happy with that -- at least as a step in the right direction.  I'd donate an appreciable amount fo time helping free software groups do this.

That's all I have time for this morning.

Regards.

[Isaac]

I agree that the FSF has an anti patent stance, but I'm not aware that their stance translates generally into anti-intellectual property.  

Mainly what I object to is the characterization of free software people in general as pirates.   In the general press I often see a linking of free software and open source advocates with those use "information wants to be free" arguments to justify wholesale stealing of copyrighted music, movies, books etc.   There is no such link.  

While I don't agree with the FSF with respect to software patents, I know that reasonable people can hold different opinions about the issue without being anarchists, thieves or worse.

[eric stasik]

Dear Mr. Clark,

“If this or that is patented, then Mozilla can’t do this or that, and we all die,” is more or less how the argument goes.

Stallman, Lessig, Moglen, Perens, etc have all gone on record saying that software patents would devastate the software industry – particularly F/OSS development. While I do not agree with their hyperbole, there can be no doubt that software patents will have a patricularly profound impact on F/OSS.

On March 29th I posted a quote from Ronald Mann’s draft paper entitled “The Myth of the Software Patent Thicket.” A Mann explained it:

“The problem is that the open-source community has set itself outside of the cooperative IP framework of the mainstream software industry. Thus, its members have no patents of their own with which they might protect themselves in such litigation. At the same time, it has developed its software with the same cavalier attitude to the possibility of patent infringement as commercial software firms exemplify. Those two habits cannot coexist in the long run.”

He hits the nail on the head. What happens when a standard – like FAT – is patented and the patents are not available on terms compatible with the GPL? What happens to F/OSS when it becomes an infringement to implement/support FAT?

The F/OSS solution is to make such patents illegal, or to impose some strange “interoperability” license that would effectively emasculate the patent, or, as in the present instance, demand that the patent office to revoke the patent.

“Take down that fence, it’s in our way.”

You see the thing is without free and unfettered access to everyone’s technology, F/OSS will find themselves hemmed in by advancements in technology. If Linux cannot evolve it will be as useful in 5 years as MS-DOS 2.1 is today. I don’t think there’s any dispute over this.

So the battle here is not about free speech as Stallman and Lessig and Moglen would have you believe, it is about free beer - free access to technology unhindered by concern about patents.

I have to be honest. I’m not sure what the definition of a pirate is. The image I have in my mind is a sailor with a three-pointed black felt hat, a patch over one eye, and cutlass in his right hand, stopping ships at sea engaged in legal commerce, and stealing everything on board.

Trying to rob/deny others of their legitimate intellectual property rights is in my view a form of piracy.

As a patent professionial, I do not believe anyone benefits in the long run from weakening IP laws. To the contrary in the knowledge based economy of the future, strong, comprensive IP is more important than ever.

There is a lot which suggests that this discussion is simply a continuation of last century's political debate, but instead of discussing who owns the coal mine and the steel mill, we're discussing who owns intangible industrial property.

Personally, I think the argument of private versus public ownership of property was pretty much decided in 1989 when the Berlin Wall fell. Public ownership lost.

Thanks for commenting. I appreciate your point of view - and I’m glad someone’s reading my news posts!

Kind Regards,

Eric Stasik