Seriously, this is the best opinion piece on open source and patents that I've read in a long long time. And as the founder and former director of the NoSoftwarePatents campaign and author of the FOSS Patents blog, I read (and write) a lot about that subject.

There's a precedent to this settlement in which Red Hat definitely paid royalties: when it settled the FireStar case. It published a misleading FAQ on its website trying desperately to divert attention from what really happened. The non-confidential part of that settlement was published and leaves no doubt that Red Hat entered into an obligation to pay (even Groklie arrived at that conclusion, a website that I very rarely agree with). That payment was probably not on a per-unit basis. They might have made a one-off payment, or a royalty on revenues/profits, or some combination of both.

Concerning Moglen's discouraging anti-software-patent lobbying, it's interesting that he gets away with it (other than Bruce Perens criticizing him for it now) while I get bashed all the time for calling on people to be pragmatic. The first time I met Eben Moglen (back in 2004 together with a MySQL VP), he told us not to lobby against software patents. Instead he wanted money for his patent-busting efforts, which failed miserably (Microsoft's FAT patents are still in force).

I tried very hard to fight against software patents (in the EU) at the legislative level. I said on my new blog several times that at some point (more than four years ago, in fact) I couldn't help but arrive at the conclusion that it's impossible. It won't happen simply because the collateral damage caused to other industries is huge (you either have to do away with the largest part of the patent system, or you have to live with software patents) and there simply isn't any serious, meaningful support for the anti-software-patent cause by businesses. On LWN I gave an example by quoting what a staffer of the conservative group in the European Parliament once said: unless you bring in those middle-aged closed-source entrepreneurs with beards, bellies and glasses talking about how they suffer from software patents and how they may have to lay off employees because of software patents, there's no way that a political majority will do what the FOSS community asks for.

While my focus is on how to deal with the most important threat (exclusionary strategic use of software patents), Moglen never talks about that because he's been loyal to IBM throughout his professional life and gets funded by them. Instead, he always talks about IBM's (and consequently, his) favorite bogeyman, which is the wrong focus.

That posting asserts all sorts of things without any basis. To give just one example (this is too unreasonable to comment on every aspect of it), I've never advocated OOXML in any way and as far as FRAND is concerned, I've always made it clear that it's not my first choice.

The "open standards" lobby in the EU purposely confuses people when it talks about "royalty-free" ("RF") access to patents on standards. What they really mean by "RF" is "restriction-free": that's what some of the honest advocates of that position (such as Glyn Moody) make clear whenever they talk about RF.

They try to focus everything on the question of royalties when there are actually other ways in which patent holders can restrict the use of a standard. For example, the Java patent license (part of the Java specifications) is royalty-free but very restrictive (no supersetting, no subsetting, etc.).

Those who now talk only about "royalty-free" hope that they can get some language into the document which they would later interpret as "restriction-free".

I fought against the BSA when I opposed a proposal for an EU software patent directive. I don't mean to support all aspects of their letter, but I would like to draw some more attention to the fact that the EU "open standards" lobby isn't perfectly credible.

Three months ago I wrote about the open hypocrisy of companies such as IBM, Google, Oracle and Red Hat. Since I wrote that blog post, lots of new things have happened and become known: the European Commission felt forced to launch two parallel antitrust investigations, one of which relates to IBM's refusal to provide interoperability; Oracle sued Google over seven Java patents; later Google and Oracle accused each other of hypocrisy; now Oracle has thrown out the founders of LibreOffice from its OpenOffice mailing list; and Red Hat doesn't appear to comply with LSB 4.0. So much for "open standards" when those companies -- the primary backers of the EU open standards lobby -- are concerned...

What's worse is that the proponents of "open standards" don't tell the truth as far as the compatibility of FOSS licenses with patent licenses is concerned. Such licenses as the Apache license, BSD licenses or the EUPL (European Union Public License) don't contain any language that could be understood to prevent a software publisher/distributor/user from doing a license deal with a patent holder. The only family of licenses where that scenario is addressed is the GPL. GPLv3 isn't relevant, and GPLv2 contains some language that's clearly unable to prevent such arrangements as the Novell-Microsoft partnership (announced four years ago and still not challenged formally by anyone). Even the early drafts of GPLv3 wouldn't have blocked the Novell-Microsoft kind of patent deal, as Richard Stallman admitted at the time. Also, there are plenty of examples of companies distributing GPLv2-based software and paying patent royalties, including Red Hat, TomTom, HTC, LG, Samsung...

So even though one may very well believe (and I'm known for that position) that software should preferably not be patentable, it's disingenous to claim that FOSS licenses prohibit inbound patent licensing. It happens all the time, and there's increasing awareness for that fact in the EU, which makes those who spread lies or grossly misleading statements look pretty bad.

One of the organizations lobbying alongside the likes of IBM for open standards, the FFII, has a board member who admitted six months ago that they received significant funding to do their work against OOXML and that he was initially skeptical but, apparently, money overcame his doubts. The FFII of 2010 and recent years isn't anymore the kind of pan-European network that fought against software patents until 2005. It's only a very small group of activists, and some of them appear to act as corporate stooges now.

There are two different approaches. Oracle looks at Google as the "root cause" of all those patent infringements. So they go directly after them. Apple (which sued HTC months ago; litigation still ongoing) and Microsoft instead approached particular vendors. If you want to deal with vendors, you need to do many deals and theoretically may have to go through multiple lawsuits (although after you win against the first major vendor, the others will probably give up). The logic about going after vendors is that they're responsible for obtaining all the necessary patent licenses for their products. Patent holders can choose which avenue to go down. Theoretically they could even decide to sue commercial users.

Oracle sued Google over Dalvik (the virtual machine for Android), so in that case Google doesn't even have any choice. Oracle appears to hold Google responsible for every Android phone out there.

I'm always hesitant to respond to anonymous comments but let me just say that I indeed encourage everyone to read my comments and blog postings. I just look for ways forward, under the circumstances.

The Linux cancer quote isn't relevant in my view because it's old and especially because it only related to the copyleft principle (didn't disparage the software in question). Since Linux doesn't affect applications running on top of it in terms of copyleft, the statement might have been based on a misunderstanding of the license terms in question. We'll never know.

Finally, in terms of the objectives of my work, I don't deny that I take a strong interest in FOSS as a whole doing well and in particular projects, more recently especially Hercules (and previously also MySQL, in connection with its acquisition by Oracle). I believe those are causes deserving of broadbased community support. As far as other topics go, there aren't specific causes for which I ask support -- I just want to contribute additional information and perspective to certain debates.

I'll take a closer look at those patents over the weekend and some of them may indeed go back to pre-smartphone PC days but still be valid. Software patents can be valid for 20 years according to an international treaty (TRIPs).

I think I read something about Motorola not intending to support Windows Phone 7 anyway. In that case, they have nothing to lose in terms of a customer.

They exist in Europe (some examples here) and they are upheld by national high courts such as the German Bundesgerichtshof.

There's too much going on there with several major patents asserting patents. They can't all be wrong at the same time, and we're talking about a notorious patent minefield. I don't say quick surrender -- but a solution must be found.

In terms of the patents concerned, I'll take a closer look at them. I've updated my blog posting with a link to an article that shows the complaints filed with the district court and the US International Trade Commission.

Microsoft will be around for a long time to come, and so will Google, despite all of this. So I wouldn't worry (or gloat) about them. The real concern is how all of this patent litigation will ultimately impact Android application developers. That's what I stressed in my first reaction to this. App developers invest a lot of creativity, time, money and hard work in a platform. If Google doesn't step up now and make a really serious effort to work out deals with all those patent holders, Android as a platform may be in trouble and app developers would suffer.

Google knew all along that smartphones (and mobile phones in general) are a field in which plenty of patents exist, and in which they are enforced aggressively. Google doesn't have a patent portfolio to match the portfolios of Microsoft, Apple or Oracle; so it doesn't represent a counterthreat. But it could try to negotiate license deals. That's what it must do now, not only for itself, not only for Android phone vendors, but above all for the application developer community its platform depends on.