Patents (Score 4)

I've been involved in some side discussions on this subject. Interested parties might want to check the archives of the FSB mailing list ([e-mail]) or of news:gnu.misc.discuss.

Both RMS and ESR have proposed patent pooling and "mutual non-aggression pacts" to deal with the issue of patents and free software. The proposal actually pre-dates both of them -- John Walker of Autodesk, L. Peter Deutsch of Aladdin Ghostcript, and others have suggested similar ideas.

The general view is that if a patent pool is needed as an effective deterrent, then free software needs to own patents. Both RMS and ESR have suggested this. It's sort of the necessary evil paradox.

There's an interesting situation in that there are relatively few generally known cases of patents being enforced against free software. There are cases -- LZW and compress/gzip, gif, also the Gimp and color balancing algorithms. But the obvious threat (Microsoft) hasn't engaged in a direct play, nor have many other potential enemies of the people. Microsoft might be excused as its hands are tied until it settles the current DoJ case, but what's stopping everyone else.

There are two theories I've heard:

• Patents asserted against free software might risk being interpreted by the courts as being opposed to the Constitutional mandate for patents ("to advance Science and the Useful Arts"). I find this possible but improbable.
  
• More likely, IMO, it's been that there are few good targets to sue, and some potential friends who might object. Developers themselves are unattractive litigation targets because they have few resources. The apparant alliance of large patentholders such as IBM, Oracle, Apple, and Sun with the free software community means that there's a good posibility that patent action might result in retaliatory action. IBM itself owns a fair fraction of all patents, and is best not annoyed.

Patents apply to the use of ideas -- not just manufacture but distribution, sale, and contributory infringement. With the growth of free software based businesses -- distributors (RedHat, et al), VARs (VA Linux Systems, Penguin Computing, et al), and large-scale end users (Yahoo, many eCommerce sites), there are coming to be some deep pockets which might be litigation candidates. Patent (and trademark and copyright) intellectual property litigation is considered a major business threat, and is in large part responsible for license proliferation as greater protections are sought.

It's possible that the sleeping tiger may yet awaken.