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)
Both of these techniques show Ingo Molnar as the inventor. And where might
one find the patented technology?
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
(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
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.
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