Open source must be able to deal with patent licenses if necessary
Posted Oct 19, 2010 2:36 UTC (Tue) by FlorianMueller
Parent article: Open Standards in Europe: FSFE responds to BSA letter
I, too, fought very hard against the BSA over the European software patent directive. In this context, it's the FSFE itself that presents mostly fiction, not facts.
It's a dishonest argument to claim that open source licenses don't allow inbound patent licensing from third parties. This is definitely possible, and it's practiced all the time, even with GPLv2. GPLv3 is the only exception, and it's an irrelevant license because it's not pragmatic.
I think it hurts open source - as opposed to helping it -- if some claim that this can't be done. If developers invest a lot of effort into a project, and if there is a patent (or a list of patents) that can't be worked around, then licensing can be a solution.
Not that it's preferable over the abolition of such patents -- but abolition isn't realistic and licensing happens all the time. Even Red Hat distributes GPLv2'd software despite having committed itself to a royalty payment on such software as part of the FireStar settlement (just look at sections 3 and 5 of that document), and it's more recent settlement with an Acacia subsidiary wasn't disclosed (so much for Red Hat's openness) but the circumstances also suggest very, very strongly that they paid.
Apart from misrepresenting the feasibility of inbound patent licensing, the FSFE also appears to care about interoperability very selectively. The FSFE doesn't seem to care if its lobbying partners (especially IBM and Oracle) deny interoperability. Since the European Commission felt forced to launch two parallel probes of IBM's conduct, one of which relates to IBM's refusal to provide interoperability with open source, the credibility of that "open standards" camp is not what the FSFE would like to believe or would like to make the community believe. It's pretty clear that the FSFE teams up with companies who just seek to increase their operating margins and gain other economic benefits without truly being interested in open standards (as IBM shows in the mainframe context and Oracle in the OpenOffice and Java contexts).
In my blog post I linked to further above I also mention the story of the MXM license, a license that not only allows inbound patent licensing but also allows contributors/distributors to later collect patent royalties from downstream users. That open source license was drafted by the FSFE's outside counsel -- not in an FSFE capacity (a fact he made very clear), but it shows that even in FSFE circles there are people who can be pragmatic if they have to.
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