OSDL's response to Ballmer's patent claims

Posted Nov 21, 2004 19:41 UTC (Sun) by iabervon (subscriber, #722) [Link]

You can use patented technology (without a license) knowingly, obviously. It's just that, if you are found to be liable, the damages are triple. If, on the other hand, you are found to not actually infringe a patent, there's no penalty for knowing about it. OSRM's claim is that Linux is actually safe, but not so safe that bad people can't cause trouble; if this is true, there's no need to remove anything. The most Linus et al could do would be to sue each patent holder seeking a judgement that Linux doesn't infringe on the patent (that is, get the non-infringement established pro-actively).

In any case, in order to be held liable for willful infringement, you need to know what patent you infringe, not just that something you do infringes some patent, in someone's opinion. With the information they have, the kernel developers would have to remove absolutely everything to know they weren't violating a patent, because they haven't been told what they would have to remove. And OSRM has intentionally not made the list of patents or the sections of code public, for just this reason. If you want, they're willing to tell you (individually) what the patents are, but this means that, if they're wrong about Linux being clear, and you get sued and lose, you'll have to pay three times as much. Furthermore, there's not really any benefit to this, particularly since the chance that Linux infringes is not high enough to actually justify removing functionality to make sure that it absolutely couldn't infringe anything, particularly given the huge difference between what patents say and what companies have been known to claim they say.

If it were quite so easy to force people to remove stuff, Sun would have alledged long ago that every piece of software Microsoft has ever released has infringed a bunch of unspecified patents, and Microsoft would have to stop shipping software and go out of business.

(For that matter, the current set of patent laws is probably unconstitutional under at least some readings of the constitution, because the rationale given for patents in the constitution involves making their contents available to the rest of the industry, so that others don't have to reinvent things; the current laws make it prohibitive, from the standpoint of liability, to actually look at any patents which you could potentially care about. If congress is bound to make the laws they are permitted by the constitution to make only if they satisfy the purposes the constitution lays out for having such laws, the aspects of patent law involving willful violation are unconstitutional. Of course, the current Supreme Court didn't buy a similar argument about copyright law in Eldred v. Ashcroft, considering the explanation to merely be commentary, not restrictive, so a case today (or, at least, last month) would probably not have overturned those laws.)

Posted Nov 22, 2004 18:48 UTC (Mon) by edgewood (subscriber, #1123) [Link]

OSRM didn't specifically identify the violations for exactly that reason. See, for instance, the last two paragraphs of this article.