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VFAT patent avoidance and patent workaroundsVFAT patent avoidance and patent workaroundsPosted Jun 29, 2009 19:39 UTC (Mon) by k3ninho (subscriber, #50375)In reply to: VFAT patent avoidance and patent workarounds by clugstj Parent article: VFAT patent avoidance and patent workarounds
If you're in the USA, please include the 'remove triple damages for wilfull infringement' in the patch for USC 35 if you get any patent law reform. Triple damages are why there isn't publc discussion of this: any statements made by people who, in court, can be shown to be knowledgeable and responsible for the Linux kernel VFAT implementation can triple the damages when court action against infringement happens.
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VFAT patent avoidance and patent workarounds Posted Jun 30, 2009 2:29 UTC (Tue) by jlokier (subscriber, #52227) [Link]
I was going to say:
"Does anyone seriously think any judge, upon being shown all the nudge-nudge wink-wink emails, believe that the people involved are not in some way knowledgeable and responsible for the Linux kernel VFAT implementation? Or perhaps acting as agents for those who are? Making it obvious that you know something, by telling everyone that you know but can't tell anyone about it, while posting detailed, carefully tweaked and tested code... And hoping a judge will believe you don't know anything?"
But then I remembered that the people posting code aren't posting a VFAT implementation. They're posting a non-VFAT implementation; they aren't responsible for the VFAT implementation. So they should be immune to triple damages judgements; they aren't posting infringing code.
But the veiled semi-secret descriptions don't make sense from either of those points of view. I'm still puzzled by it, and wonder what it gains anybody. It certainly costs something: loss of transparency in an important open source project.
I'm sure it's true that good lawyers have been consulted. The explanations seem to amount to "we've been told we must do X, and not only can't we tell you why, we can't properly tell you why we've been told not to tell you why. Somehow by not telling you things, it changes whether our code would be found to infringe a patent".
Which seems just... morally wrong and perverted. A lawsuit ought to be judged on relevant facts, not what people reveal and conceal about those facts.
VFAT patent avoidance and patent workarounds Posted Jun 30, 2009 2:55 UTC (Tue) by dlang (✭ supporter ✭, #313) [Link]
remember that the infringement isn't in knowing the technology (the patent application is required to disclose the technology so that someone 'ordinarily skilled in the field' could implement it), it's in duplicating the process described in the patent.
carefully examining the patent and tweaking your project so that it doesn't infringe is perfectly legitimate (and in fact, if the patent is well established in the industry, may be the only possible way for you to operate in the industry short of licensing the patent)
VFAT patent avoidance and patent workarounds Posted Jun 30, 2009 3:37 UTC (Tue) by jlokier (subscriber, #52227) [Link]
"carefully examining the patent and tweaking your project so that it doesn't infringe is perfectly legitimate".
Quite, and that's exactly what the patches do. And everyone knows it. So why the "we can't tell you exactly what we're doing" part?
One could get the impression that even if it's legitimate to do, it's not legitimate to admit to doing it. Which seems thoroughly perverse.
VFAT patent avoidance and patent workarounds Posted Jun 30, 2009 7:27 UTC (Tue) by jzbiciak (✭ supporter ✭, #5246) [Link] I think there's an important detail being missed: The FAQ makes an important point related to workarounds that the community should hear: publicly questioning the effectiveness of a workaround can have fatal results. It's not that we can't describe exactly what we're doing. (The description of the VFAT patch seems pretty complete here, with all its rigarmarole to avoid automatically writing two filenames for the same file to the directory structure.) What's problematic is the process of poking holes in the workaround in public. Even if the "hole" you poke is imagined, creating the impression that the implementers know that their workaround doesn't actually work around the patent gets you back into the appearance of "willful infringement" territory. At least, it becomes easier to make that argument in court, particularly if the court isn't as tech savvy as the implementers are. Keeping the hole-poking discussions private is what's more important. Yes, it's a loss of transparency, and yes, we should hold this up as a shining banner of why software patents are bad.
VFAT patent avoidance and patent workarounds Posted Jun 30, 2009 20:57 UTC (Tue) by nix (subscriber, #2304) [Link]
So what happens if (when, more likely) someone claims a patent on some
aspect of task scheduling or memory management or something else core to the OS? Must we stop discussing *that* on l-k as well?
This alone is quite capable of destroying open software development. They
(And now they've seen the effect of asserting a patent on something
VFAT patent avoidance and patent workarounds Posted Jun 30, 2009 22:17 UTC (Tue) by jzbiciak (✭ supporter ✭, #5246) [Link]
This is why so many technical folks don't proactively go read the active patents at the USPTO (or other patent organization). You can't willfully infringe if you are truly unaware of the patent.
For example, if this VFAT patent was just buried in the piles of MS patents and nobody had brought it up, we wouldn't have this patch. It's not until MS starts flexing its muscles that we say "ok, what now?"
If some patent troll comes along claiming against our scheduler, there's no claim of willful infringement at that point, because we simply didn't know about it. Discussing the workaround gets tricky, and that's the part that sucks. Invalidating the patent with prior art also is interesting at that point.
In any case, in your imagined scenario, the mere fact of the patent's existence didn't stop us from coming up with our version of the scheduler to begin with. It just crimps our style in discussing how to handle the patent troll once he shows up and only if he shows up.
It sucks and I certainly don't like it. There may be some chilling effect, and if there is, evidence of it should be held up as shiny examples of why the status quo is bad for innovation.
VFAT patent avoidance and patent workarounds Posted Jun 30, 2009 23:01 UTC (Tue) by nix (subscriber, #2304) [Link]
I don't see how it wouldn't crimp our style discussing anything to do with
the scheduler forevermore. How are we going to discuss LFN issues of any sort in VFAT in the open from now on? As far as I can tell, we pretty much can't.
(A more significant reason why nobody reads patents is because they're
VFAT patent avoidance and patent workarounds Posted Jul 8, 2009 11:17 UTC (Wed) by fergal (subscriber, #602) [Link] I don't see how it wouldn't crimp our style discussing anything to do with the scheduler forevermore. How are we going to discuss LFN issues of any sort in VFAT in the open from now on? As far as I can tell, we pretty much can't. You can discuss almost everything. Just don't publicly say "hey I don't think this does work around the patent because ...". If you think you've found a flaw in the legal reasoning, send a private email. You probably also shouldn't send a patch for purely legal reasons and discuss them in public. That leaves everyone who is likely to do any work on LFN reasonably free to do it and discuss it in public.
VFAT patent avoidance and patent workarounds Posted Jul 8, 2009 18:16 UTC (Wed) by nix (subscriber, #2304) [Link]
Well, we've already seen "don't discuss details of the implementation of
this patch: $PERSON will send you a private email explaining the design" (and then he apparently doesn't, at least not yet) which means that if this patch goes in we have opaque design decisions in the kernel for the sake of a single (large) country's appalling legal regime. Great stuff.
I wonder what can't-discuss-it code will be going in for the Chinese
effect on discussion Posted Jul 1, 2009 13:26 UTC (Wed) by pjm (subscriber, #2080) [Link]
Just to clarify, I haven't seen anyone claim that we can't discuss the *implementation* of long filenames (or scheduling or whatever other hypothetical target of patent suits), just that it's dangerous to try to discuss what things would or wouldn't infringe the patent.
VFAT patent avoidance and patent workarounds Posted Jun 30, 2009 5:09 UTC (Tue) by spiv (subscriber, #9031) [Link]
"Somehow by not telling you things, it changes whether our code would be found to infringe a patent"
Actually, the FAQ referring to the legal advice doesn't say that; it says that if someone said on LKML that they thought the patch might not avoid the patent then it makes it more likely that the case would go to a full trial. It doesn't say that it is likely to affect the end result of a full trial. But it does make the point that a full trial is going to be much much more expensive (and time consuming), so it's in the interests of a potential defendant to avoid it.
In short, the purpose of the patch is to reduce risk of litigation even starting, and a hypothetical public statement on LKML that it might not avoid the patent has the potential to at least partially undo that.
(IANAL etc.)
VFAT patent avoidance and patent workarounds Posted Jun 30, 2009 13:30 UTC (Tue) by drag (subscriber, #31333) [Link]
The #1 thing to remember is:
THE LAW IS NOT CODE.
The Law is not code. It simply does not operate on the same level of exactness that source code operates.
There are all sorts of side rules, all sorts of implying and interpretation, and all sorts of crap like that. This patent IS A PROBLEM for some Linux users and developers. The FAT is a very real, very expensive thing to deal with. Ignoring it and minimizing it is simply doing absoletely nobody any favors.
It's very difficult for programmers to understand that Law doesn't make sense. It doesn't have to make sense, it'll never make sense. It's something that is intentionally vague in order to be able to deal with the complexities of human interactions in society.
So it's entirely up to a Judge to decide on a case by case basis.
So it's entirely and 100% makes sense that doing things like having Linux kernel developers questioning the patent workaround is the same of the Linux kernel developers saying that they think that they are violating the patents.
Get it?
By questioning the patent-workaround to much your admitting that your KNOWINGLY violating the patent. At least it will seem that way, which is _good_enough_. It's opening up a huge hole in any sort of legal standing you may have.
It's not very complicated here.
I am not a lawyer. I haven't looked at the code, I haven't looked at the patents in question. etc etc.
The law is/is not code Posted Jun 30, 2009 14:37 UTC (Tue) by davecb (subscriber, #1574) [Link]
The law is not code, it just uses some few of the same terms in ambiguous ways, such as "code". It's the black art of coding for autonomous processes (humans) using only global variables and universal statements like
for all X, if X is blue, do not do X
Arguing about whether X is in fact blue, having publiclly said we're doing X, is evidence that there is doubt about whether X is blue.
In doubtful cases, a company can ask a court to rule on whether X is blue, and if so, whether we've roken the rule.
--dave
VFAT patent avoidance and patent workarounds Posted Jun 30, 2009 15:03 UTC (Tue) by dgm (subscriber, #49227) [Link]
> By questioning the patent-workaround to much your admitting that your KNOWINGLY violating the patent.
Maybe. Or maybe not. I would say that the only thing you admit is that you know that the patent exists. Maybe the questioner doesn't understand the implementation, or the patent, or both. Maybe the patent is bogus, maybe the actual code does not infringe (aren't patents open to interpretation?), maybe...
> I am not a lawyer. I haven't looked at the code, I haven't looked at the patents in question. etc etc.
Me neither.
VFAT patent avoidance and patent workarounds Posted Jun 30, 2009 16:59 UTC (Tue) by drag (subscriber, #31333) [Link]
No. If your arguing that a patch doesn't work around a patent then essentially your admiting that you've read the implimentation and that you know your currently violating it.
That's the only way that a judge is going to interpret that.
It's just logical. How is somebody going to 'poke holes' in a patent-workaround when they don't even know the patent itself?
VFAT patent avoidance and patent workarounds Posted Jun 30, 2009 19:09 UTC (Tue) by jordanb (subscriber, #45668) [Link]
When did being knowledgeable or informed become a prerequisite for having an opinion on the internet?
VFAT patent avoidance and patent workarounds Posted Jun 30, 2009 21:03 UTC (Tue) by nix (subscriber, #2304) [Link]
I'd say the law is *exactly* like what code would be like if it was
written over many centuries, by people who never understood more than a fraction of the codebase, and with a goal of consistency above all despite that.
(In many sufficiently long-lived legal systems, the very oldest laws don't
VFAT patent avoidance and patent workarounds Posted Jun 30, 2009 21:29 UTC (Tue) by jordanb (subscriber, #45668) [Link]
> I'd say the law is *exactly* like what code would be like if it was
> written over many centuries, by people who never understood more than a > fraction of the codebase, and with a goal of consistency above all despite > that.
I think that's an excessively reductionist view of human society and the way it interacts with its laws.
Code is a set of instructions performed by a machine. This is true even of 'big ball of mud' type systems. Any attempt to reduce the operation of human society to that of a machine will get into the more extensional (and pointless) aspects of the philosophy of AI.
VFAT patent avoidance and patent workarounds Posted Jun 30, 2009 21:54 UTC (Tue) by nix (subscriber, #2304) [Link]
I was actually being cynical about code quality, rather than reductionist
about the law. I suspect that code *will* get as hopelessly inconsistent as legal systems do, if you let them accrete for as long: i.e., the driving factor here is time.
(That's why I mentioned old laws getting ignored: that's one major
VFAT patent avoidance and patent workarounds Posted Jul 1, 2009 5:22 UTC (Wed) by njs (subscriber, #40338) [Link]
> That's why I mentioned old laws getting ignored: that's one major difference, because old code doesn't get ignored
Heh, I just read it as part of the analogy, with the old laws like the old modules that end up sitting in a corner mumbling quietly to themselves without actually being hooked into anything that matters anymore.
VFAT patent avoidance and patent workarounds Posted Jul 1, 2009 22:05 UTC (Wed) by nix (subscriber, #2304) [Link]
That works, too.
Anyway, my apologies for introducing an analogy unrelated to cars, but as
VFAT patent avoidance and patent workarounds Posted Jul 1, 2009 22:47 UTC (Wed) by njs (subscriber, #40338) [Link]
As part of the rising interest in "green" computing, I propose that henceforth we make analogies involving biking, walking, and light rail whenever possible.
VFAT patent avoidance and patent workarounds Posted Jul 3, 2009 19:03 UTC (Fri) by giraffedata (subscriber, #1954) [Link] Code is a set of instructions performed by a machine. That's a bad way of thinking about code. It's an accurate description of machine code, but since the work of Grace Hopper, good code is a description of the solution to a computational problem. It's written in a language simple enough that a computer can understand the solution and implement it. So calling code instructions to a computer is like calling a manuscript instructions to a publisher. So the way I would compare law to code is that law is what code would be like if we had much more advanced computer technology (and I do think we'll get there eventually). Imagine code that technically says to iterate forever, but the computer understands you didn't really want an infinite loop and stops after a reasonable number of iterations. Law can do that.
effect of discussion on legal procedings Posted Jul 1, 2009 13:46 UTC (Wed) by pjm (subscriber, #2080) [Link]
I haven't seen anyone say that whether or not one says things changes whether the code infringes the patent. The FAQ says that it can change whether or not the judge can give a summary judgement that there's no infringement: it influences the decision of whether or not there's anything that needs to be looked at more carefully to decide the matter. The FAQ says that judging on all the relevant facts is time-consuming and expensive; and that the aim is to avoid there being enough doubt that the judge decides it's necessary to do that.
Someone else in these LWN comments also suggested (without citing any evidence) that such discussions can change whether or not one is found to have knowingly ("willfully") infringed the patent.
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