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Red Hat and software patents
Software companies worry about software patents; an infringement suit can,
after all, ruin your whole day.
Red Hat has decided that the best way to deal with the problem of software
patents is to get into the game. So, the company has applied for (at least)
two patents:
Both of these techniques show Ingo Molnar as the inventor. And where might one find the patented technology? The
embodiments of the present invention described are implemented in a
computing platform based on the computer operating system commonly known as
'Linux' that is available as open source directly over the Internet. Linux
is also available through various vendors who provide service and support
for the Linux operating system. Among these vendors are Red Hat, Inc., of
Research Triangle Park, N.C., the assignee of the present
invention.
(This news was originally reported (in Italian) on FreeGo). After letting people worry over the holiday weekend, Red Hat issued a statement of position on software patents. According to that statement, Red Hat's intent is defensive:
Red Hat has consistently taken the position that software patents
generally impede innovation in software development and that
software patents are inconsistent with open source/free
software.... At the same time, we are forced to live in the world
as it is, and that world currently permits software patents. A
relatively small number of very large companies have amassed large
numbers of software patents. We believe such massive software
patent portfolios are ripe for misuse because of the questionable
nature of many software patents generally and because of the high
cost of patent litigation. One defense against such misuse is to
develop a corresponding portfolio of software patents for defensive
purposes. Many software companies, both open source and
proprietary, pursue this strategy.
Red Hat, too, has decided to pursue that strategy; it has joined the software patent arms race by arming itself. What do these patents mean for free software? According to Red Hat's position, not much; the statement includes a promise to not enforce any patent claims against software using an "approved" open source license. So the free software community can relax; Red Hat is simply trying to protect itself from patent suits and will not be exploiting the dark side of software patents. Not so fast. The situation, unfortunately, is not quite that simple. There are a couple of problems with Red Hat's position that should be kept in mind. The first of these problems is that a promise on Red Hat's web site only means so much. It is not an enforceable contract that anybody can count on; Red Hat can change its position at any time. A court may take the published promise into account in a future case, but that promise may not keep such a case from happening in the first place. Red Hat, under its current management, seems unlikely to change its approach to patents - the posted promise is undoubtedly sincere. But corporate management and ownership can change quickly - and, with them, posted patent policies. More disturbing in the short term, however, is Red Hat's list of "approved" licenses. It includes the GPL, the IBM Public License, the Common Public License, the Q Public License, and "any open source license granted by Red Hat." A whole class of licenses, including the LGPL and, crucially, the BSD license, has been excluded from Red Hat's patent promise. In other words, the various versions of BSD Unix are not welcome to use Red Hat's patented technology. In fact, they can be sued for infringement if they do use that technology. The license wars, it seems, are still being waged, and Red Hat has just launched a new offensive. This is a move which will encourage division in the free software community, to say the least. The cynical among us could even see this policy as a strike by Red Hat against a whole class of competing free operating systems. That is almost certainly not the case: Red Hat is just trying to ensure that its patent weapons can actually be used. As the company told us:
We elected to specifically exclude licenses that don't expressly
prohibit open source code from being incorporated into proprietary
code. Absent that stance, the patents would be of little benefit.
It's not worth it. Red Hat ships a great deal of software under licenses which, it seems, are now too free: consider the X window system or OpenSSH, for starters. There has been a great deal of exchange of ideas between Linux and *BSD; the FreeBSD VM subsystem, for example, has long been seen as an inspiration by at least some Linux kernel hackers. We have all benefitted from the OpenBSD security auditing work. Red Hat, in the name of patent defense, is cutting off the flow of ideas in one direction. That is not how free software is supposed to work. Red Hat should find a way to deal with software patents that does not alienate a large and valuable part of the free software community. As a starting point, why not contribute these new patents (and the various gcc patents said to have been originally obtained by Cygnus) to a free software "patent pool"? The patents would be licensed for any use as long as the licensee does not sue any company alleging patent infringement by any free software used or distributed by that company. If it is absolutely necessary to dirty one's hands with software patents, this approach seems more constructive and beneficial to the community. (Log in to post comments)
(Meta: should editorial comment go in daily?) Posted Jun 3, 2002 18:41 UTC (Mon) by Baylink (subscriber, #755) [Link] I think not (said Descartes, and disappeared. :-)Personally, I concur with the gent who said that the thing he liked best about the Weekly edition was the editorial portion of the 'paper'. I read the daily updates on a fairly regular basis... but I *still* read the weekly, and the reason that I do is because I know there will be something *new* there. Even if only from a "we can charge advertisers more for the weekly edition" standpoint, I don't think it's especially wise to stop reserving that editorial comment and release it daily instead. But maybe it's just me.
(Meta: should editorial comment go in daily?) Posted Jun 3, 2002 18:58 UTC (Mon) by corbet (editor, #1) [Link] Certainly, not everything will go into the daily stream - mostly just front page stuff, and not all of that either.One thing we have considered is releasing individual weekly pages (i.e. the kernel page) when it's done, rather than letting it age until Thursday. I'd be curious to see what people think of that idea.
(Meta: should editorial comment go in daily?) Posted Jun 3, 2002 20:15 UTC (Mon) by Baylink (subscriber, #755) [Link] Nah; I wouldn't even do that.Personally, at least, one of the things I often do is to snarf One Big Page into a browser at the beginning of the day, then drag the laptop along with me during the day, catching up on whatever I can. Since it all happens on Thursday, I can do that. If you split it up, I wouldn't be able to. It's a matter of taste, certainly, and what you're trying to optimize for, but *I* like it a lot better the way it's been.
wget is your friend. Posted Jun 4, 2002 17:40 UTC (Tue) by GreyWizard (subscriber, #1026) [Link] [...]one of the things I often do is to snarf One Big Page into a browser at the beginning of the day[...]Why not use wget (or a similar program) to snarf it all instead?
(Meta: should editorial comment go in daily?) Posted Jun 3, 2002 20:38 UTC (Mon) by nan (guest, #710) [Link] I enjoy the weekly version very much. I am also a daily reader of the daily updates. For whatever is worth, I would prefer to see the editorial content or any page that goes into the weekly edition (thinking kernel page here) only in there, not in small or bigger pieces as it comes out. It's worth the waiting.
(Meta: should editorial comment go in daily?) Posted Jun 3, 2002 22:48 UTC (Mon) by nettings (subscriber, #429) [Link] i think editorial content should not go into the daily updates. actually, the "daily" news section is nothing special to lwn, it's just another portal (although well edited) of 90% syndicated and some original content.what makes lwn.net (and especially the editorial) important to me is the "looking back" perspective. i like to read material whose authors have taken their time and based their judgement on more than one news flash. i have always liked the way the editors try to take the edge off the latest hype and provide a calm analysis with constructive and diplomatic criticism, to solve rather than fuel a dispute. this is lwn's special trait, and it needs some time. personally, i like to reconsider a news item with a few days' distance when it comes up in the weekly, even if i have seen it before elsewhere. this is the reason why i read lwn.net.
(Meta: should editorial comment go in daily?) Posted Jun 4, 2002 11:39 UTC (Tue) by BogusUser ((unknown), #1204) [Link] > what makes lwn.net (and especially the editorial) > important to me is the "looking back" perspective. > i like to read material whose authors have taken > their time and based their judgement on more than > one news flash. > > i have always liked the way the editors try to take > the edge off the latest hype and provide a calm analysis > with constructive and diplomatic criticism, to solve > rather than fuel a dispute. this is lwn's special trait, > and it needs some time. It certainly is. I couldn't have said it better. The thing I found about this article was that it didn't stand out. I thought it was just another link. > personally, i like to reconsider a news item with a > few days' distance when it comes up in the weekly, > even if i have seen it before elsewhere. I like the weekly version because it provides a better reflection of what is actually happening. Day by day is too fined grained and I don't have time to track it. It is far too easy to lose something like this in the noise of the busy daily page. The weekly edition is an excellent source of good information about new developments. It would be a shame to lose that in the noise..... FPE
(Meta: should editorial comment go in daily?) Posted Jun 4, 2002 14:02 UTC (Tue) by fdesloges (subscriber, #291) [Link] Like all the others I would prefer that the Features be kept for the Weekly.It may sound pretty weird, but I really like the "Christmas effect" of it. Anything you really like will appear to have more value if you have to ritually wait for it to happen on a fixed date. I know that it's only a question of perception, but please don't fall to the Cult of the Immediate :-) Thanks! pss: By the way, I _still_ find it anoying to have to log in each of the 20 times per day that I open a browser to have a quick look at lwn.
Re-opening a browser Posted Jun 4, 2002 14:34 UTC (Tue) by Baylink (subscriber, #755) [Link] While, admittedly, it would be nice if/will be nice when Jon adds a "Keep me logged in" checkbox and a "Log Me Out" link.. are you that pressed for memory that you can't merely minimize and refresh later? :-)
(Meta: should editorial comment go in daily?) Posted Jun 4, 2002 15:04 UTC (Tue) by lovelace (subscriber, #278) [Link] I must agree. It's way too easy to lose the editorial in the noise of the daily updates. The weekly editorial is one of the main reasons I read LWN. Having it in with the every day stuff diminishes its impact. I think it would be better to keep it reserved to the weekly edition.
Red Hat has a point Posted Jun 3, 2002 20:29 UTC (Mon) by rknop (guest, #66) [Link] They do have a point, however, that some licenses are naturally vulnerable to proprietary take-over, and that makes a very nice loophole for a company who wants to get around one of Red Hat's "defensive" patents. They would just have to BSD the small bit of code that actually infringes the patent, and then make their proprietary code call that one bit of code as (say) a license. The ability of proprietary vendors to "hijack" and use BSD code is considered a feature by those who choose to use the BSD license for their code. However, the GPL proponents are right in that it leaves a big vulnerability in a hostile world, where companies like RedHat want to have defensive patents against proprietary software companies which have declared themselves hostile to free software. Given that, I don't blame RedHat for being cautious about carte blance to BSD and LGPL software. What I'd like to see RedHat do is change their promise to say that they will not charge patent violation against anybody who publishes BSD or LGPL code-- but the explicitly do not extend that promise to people who use such code in a proprietary product. I don't know if that is legally viable, but it would make it clear that RedHat wants to support the full free software community, and wants to grant no quarter to any proprietary software. Of course, the real solution is to have a rational government which recognizes the mess that software patents are and gets rid of the whole thing... but then, when it comes to "intellectual property right", our government's vector is pointing hugely in the wrong direction at the moment. -Rob
Red Hat has a point Posted Jun 3, 2002 20:41 UTC (Mon) by jonlasser (guest, #1077) [Link] In fact, I suspect that Red Hat's problems with the BSD license are more oriented around legal concerns than around minor software-license infighting. That is to say, a patent that is not actively defended is generally considered invalid. So Red Hat has to keep the patent from being used willy-nilly by 'unauthorized' parties. Authorizing everyone to use it regardless will end up with an invalidated patent, practically speaking. Licensing it under the BSD license is tantamount to blanket authorization to use it. Licensing the patent, by contrast, for free to all software that can't be taken proprietary puts them in a much better position to defend the patent, as I understand the system. That said, I'd like stronger assurances that they will not prosecute for use of the patents in GPL'd code.
Re: Red Hat has a point Posted Jun 4, 2002 9:02 UTC (Tue) by kleptog (subscriber, #1183) [Link] Sorry, I think you're confused. Trademarks are the ones that need defending. Patents you are perfectly allowed to let a billion dollar industry emerge before you start enforcing it.Remember the GIF patent, that they started complaining about years after everyone was using it for the web. With patents you can pick and choose who to sue.
Red Hat has a point Posted Jun 4, 2002 17:53 UTC (Tue) by GreyWizard (subscriber, #1026) [Link] They do have a point, however, that some licenses are naturally vulnerable to proprietary take-over, and that makes a very nice loophole for a company who wants to get around one of Red Hat's "defensive" patents. RedHat's policy may close the loophole, but it also curtails legitimate activity such as honest free software development under a BSD license (this is why such blunt monopolies should not be granted to undemocratic and profit focused corporations without great care). They can have their cake and eat it too if they create a patent license available to anyone who does not sue RedHat for software patent infringment -- which is a scaled-down version of what the LWN editorial suggests. Eventually they should cooperate with other free software companies that hold software patents to improve the strength of their protection. That's much more explicit and allows legitimate free software projects to continue unmolested.
Red Hat has a point Posted Jun 4, 2002 18:47 UTC (Tue) by raindog (guest, #1235) [Link] I'm not sure yet about their implementation, but the general idea of using patents against the patent system strikes me as very true to the "judo copyright" approach pursued by the Free Software Foundation with the GPL.Think about it. The GPL was originally created to use copyright against the copyright system itself, to create an ever-expanding pool of works that was not only part of the commons, but could never be removed from the commons. It creates sort of a "super-public-domain" and encourages people to add more stuff to it. I don't think even Stallman could have predicted that it would work as well as it has, the usual harping about names and who contributed what to whom aside. I've been waiting a few years to see what happened when the proprietary software guys with money started trying to take things to the next level above copyright, hoping against hope that some free software supporter companies would have the cash to put together some defensive patents that would be free to use in the same manner as the GPL. I never thought of tying the patent license to GPL-ish licenses, but I think it's kind of a neat idea. I just wish they would commit legally to doing that. It's kind of too bad that BSD-ish devotees are going to get screwed by this, but they've been living with the possibility that someone could come along and make their entire life's work proprietary for decades now. Similarly, for a dozen years they've had to be careful not to incorporate any GPL code into their stuff lest it become 'viral' or whatever, just as they had to be careful not to use proprietary source code they may have seen previously. They've had to avoid using patented algorithms before (GIF anyone?) and now they have to avoid "GPL patents" like they avoided GPL code. So things really aren't that different than they've ever been. Better for Red Hat to have these patents than Sun or Microsoft. The best situation would be to have no software patents at all, so send your hundred bucks to the EFF and get their nice baseball hat. I've got two of them so far.
Red Hat has a point Posted Jun 6, 2002 11:35 UTC (Thu) by forthy (guest, #1525) [Link] I like the idea of having a patent pool which enforces sharing. "If you want to use our patents, allow us to use your patents". A lot of corporate patents are exactly done for that reason, and many companies have patent cross-licensing agreements with competitors. That is, with software and hardware patents, patent cross-licensing rarely happens in businesses like "life science" or pharmaceuticals. There, a single patent is sufficient to produce a medicament, whereas thousands of patents can (or could) cover processors and integrated operating systems. Patent litigations often end up in the two companies signing a cross-licensing agreement, because they really both violated each other's patents.To formalize this patent pool, a few things have to be clairified. First, is it really important which license the software is written in that uses a patent? I don't think so, because the business here is just to effectively eliminate software patents on the long run. IMHO it is sufficient if the licensee of the patent just puts their own patents into the pool. If *BSD implements a patented technology, no problem. If Microsoft wants to take the *BSD code and put it into the Windows kernel, they can do as long as they put their thousands of more or less bogus software patents into the pool. They can still use their patents in a defensive way, and counter-sue third parties, which are not members of the pool. Also, members of the pool still have the right to sell their patents to outsiders.
Red Hat has a point Posted Jun 12, 2002 21:51 UTC (Wed) by origz (guest, #1985) [Link] The patent pool idea is pretty good, but it inherently leads to squabbles and lawsuits. Furthermore, RHAT needs its own patents to be a successful company. This is a step in the right direction, and if it holds up to its promise of not enforcing the patents for free software, I'm ok with it.However, please do not call stuff licensed under BSD "free software." It is not. Free software must not only be provided with source at no charge, it must also be under a GPL-type license that prohibits making it non-free. BSD is not free software, but rather software in the public domain. If you say that public domain software can use your patent, you are effectively saying that ANYONE can use your patent. Coupled with good lawyers on the offensive side, this would easily invalidate the patent.
BSD Public Domain? No. Posted Jul 22, 2002 22:11 UTC (Mon) by GreyWizard (subscriber, #1026) [Link] Free software must not only be provided with source at no charge, it must also be under a GPL-type license that prohibits making it non-free. BSD is not free software, but rather software in the public domain.What? No, sorry, that's just wrong. Public domain refers to software for which the copyright has expired or has been given up by the owner. BSD software is not public domain. Furthermore, BSD software qualifies as free software according to the very specific and clear definition provided by the Free Software Foundation and Richard Stallman. Of course, BSD software cannot properly be called "copyleft" because that term explicitly applies to software with GPL-like licenses that prevent non-free derivation.
Red Hat and software patents Posted Jun 3, 2002 20:58 UTC (Mon) by Carl (guest, #824) [Link] I did a quick search and found at least one patent that has already been granted: 6,110,226 - Java development environment using optimizing ahead-of-time compiler. It was granted to Cygnus which is now part of RedHat as you point out.This seems to describe the Gnu Compiler for Java (gcj) http://gcc.gnu.org/java/ But such patents are "safe" since RedHat obviously distributes gcj so they actually have to give a royalty free patent license (for gcj and derived works under the GPL) if they want to distribute it. From the GPL - clause 7: "If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program." I think you should also have mentioned in your article that giving a royalty free license grant to programs distributed under the GPL is more often done. Examples are the patents that Ralph Levien has and the (in)famous FSMLabs patent (Ralph also explains clearly why he only considered copylefted/GPLed programs):
http://www.levien.com/patents.html
http://www.fsmlabs.com/openpatentlicense.html P.S. You should have a clear text form, I had to add HTML markup 'p' and 'br' tags to make the above comment readable.
Red Hat and software patents Posted Jun 3, 2002 21:41 UTC (Mon) by rknop (guest, #66) [Link] This is exactly the sort of patent, however, that demonstrates why software patents are UNMITIGATEDLY STUPID. Compilers are as old as the hills. (Well, in computer terms. In fact, in computer years, compilers are probably older than the hills in standard years.) The idea of applying a compiler to, hey, this language... well, clearly that's something novel that the boys at the patent office should get in a tizzy about, and grant monopolies on. WARNING: CRUDENESS AHEAD. I'm always thinking that I should patent wiping after using the toilet. Why? Well, two reasons. First, think of the royalties I could collect! I mean, everybody's going to want to do it, so everybody's gonna have to pay. Two, it would be doing the patent office a service: the place would certainly start to smell better once the folks there learned about this novel technique. -Rob
Red Hat and software patents Posted Jun 4, 2002 4:13 UTC (Tue) by jamesh (subscriber, #1159) [Link] It is fairly clear why they exclude BSD and LGPL licenses. Those licenses allow linking with proprietary software. If those licenses were allowed, someone could write some proprietary code, but put the code that implements the patented process in a separate file under BSD or LGPL, effectively giving them a free license to the code. The licenses listed have linking restrictions that specify the terms derivative works may be distributed under. As for BSD code not being allowed to use the patents, that doesn't hold much water. They could easily license the individual source files under BSD license, but license the package as a whole under the GPL. If some company wanted to build a proprietary fork, then they could still use the source, but they would need to buy a license for the patent. Of course, you should consult a Lawyer about things like this, or ask for clarification from Red Hat. Of course, these patents only really affect people doing business in the US ...
Red Hat and software patents Posted Jun 6, 2002 3:30 UTC (Thu) by tompoe (guest, #9) [Link] Hi: Open Source relies on prior art, public domain, two terms that defeat any patent action. Defeat any copyright action. Red Hat is a proprietary company, with a proprietary product, and needs to join the W3.org folks and their RAND nonsense support group. I think this is a good time to remind ourselves that the work of the Creative Commons Project at http://www.creativecommons.org/ is specifically designed to assist in "protecting" works within the Public Domain from our former institutionalized patent business practices. Had, or if, Red Hat given this matter two seconds of its time, it would have realized that simply contacting Creative Commons, and indicating their wishes, they would have received a very nice, legally binding "Deed" that would free them of future worries for perpetuity, for goodness' sake. Patents and copyrights belong to the world of proprietary solutions. The future lies with Creative Commons and their work to house a Repository for a world based on recognition, innovation, and creativity. There is no justification for patent applications in the Open Source movement. Thanks, Tom Poe Reno, NV http://www.studioforrecording.org/ http://www.ibiblio.org/studioforrecording/ http://renotahoe.pm.org/
Red Hat and software patents Posted Jun 6, 2002 8:12 UTC (Thu) by BogusUser ((unknown), #771) [Link] Is it just me, or has the shine on the Open Source community's idealism tarnished over the last 18 months or so? Call me a fatalist, but every day I see another sign of the decline - more and more bitter, ignorant attacks on RMS (our collective conscience), more and more silly patents on free software (RTLinux, RedHat), more and more singly-trivial-but-collectively-horrifying setbacks to Free Software (the whole Bitkeeper travesty, Linus' increasingly laissez-faire attitude to Free Software, etc.). I suspect that all this has something to do with the influx of "new blood" the community has had over the last couple of years. As we drift towards the mainstream, the core principles of our community are eroding. What happened to Slashdot, is happening everywhere - soon enough the 90% of ignorant swine will dominate, and the sensible few will be drowned in the noise. If we don't defend what we have, we are sure to lose it...
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