Use of patented code in the kernel [LWN.net]

A kernel developer recently asked: should code implementing an algorithm known to be patented be submitted for incorporation into the Linux kernel? Given that Linus has promoted an approach to software patents in the past that some see as being a bit cavalier, one might be forgiven for not knowing the answer in advance. But Linus's answer was clear: "Don't submit, and find an unencumbered algorithm."

The two points of view expressed by Linus are entirely compatible. Code which is known to have patent encumbrances cannot go into the kernel, because such inclusion is (or could lead to) a knowing act of infringement. On the other hand, kernel developers should not go out of their way looking for potential patent problems with their code. That way lies madness -- there's no end of bogus software patents out there. Known problems should be kept out of the kernel; the rest should not be worried about until something comes up.

That said, a couple of interesting points were raised in the discussion. One is that the exclusion of patented code hurts all users of the kernel, even though many of them (a majority, even) are, for now at least, in jurisdictions which do not recognize the patents in question. Rather than exclude code with patent encumbrances, why not create a configuration option making the code available to those who can legally use it? The burden would then be on the end users to think about what they can do before explicitly turning on an option which would enable patented code.

Various objections can be raised to this scheme, of course. It would turn our free kernel into a partially proprietary system, at least in some countries. Patents are public knowledge, so publishing an implementation should not be a problem as long as the patented code is not used in places where the patent is recognized. But somebody might still try to file a suit complaining that the kernel (and its developers) are contributing to an infringement. The community also does not need another reason for certain critics to proclaim that Linux is putting its end users into legal danger. For all these reasons, the inclusion of patented code with a configuration option seems unlikely.

There is one other potential issue, however; as Jamie Lokier pointed out, there is already some code in the kernel with patent issues. There is a documentation file in the kernel source which discusses the SB-Live mixer code - and patents which may cover it. If there is a license which allows those patents to be used in the kernel, the file fails to mention it. The kernel also contains a "flash translation layer" memory card driver; the FTL format it implements is subject to a patent owned by M-Systems. The license that goes with that code allows the use of the patented technology - but only with PCMCIA cards. The covered code is, thus, not entirely free.

Given the nature of the software patent regime (especially in the U.S.), it seems certain that more patent-encumbered code will be found in the future. It would not be surprising if, one day, we were faced with a patent covering an important piece of code in a heavily-used kernel subsystem. At that point, some difficult choices will need to be made. Until then, however, there is little to be done.

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Solutions to the software patent problem?

Posted Dec 24, 2003 5:53 UTC (Wed) by jvotaw (subscriber, #3678) [Link]

Software patents seem to threaten all but serious commercial software companies. Free software, as well as small companies that can't afford to develop a defensive patent portfolio, are at risk of being extorted by large software companise. Larger companies can bring lawsuits that, regardless of their validity, are too expensive for little guys to defend against.

What are solutions to this? I can think of two (imperfect) ones:

1. Reform the patent system. A better way to discover prior art is a step in the right direction, and the US PTO seems to be taking some steps in this direction. Placing serious restrictions on software patents, or banning them outright, would be even better. The flaw with this approach is it will take a lot of work, luck and money for lobbyists.

2. Develop a common defensive patent portfolio. Might it make sense for OSDL or a similar body to do this? What about protecting small but non-OSS companies? It would be sad to see e.g. a shareware author extorted, even if their product is not open sourced. The flaw I see with this is the effort/coordination and lawyer fees to make it work.

Other ideas? I believe this community is smart enough to find a solution to this problem.

Joel

Use of patented code in the kernel

Posted Dec 24, 2003 18:41 UTC (Wed) by smoogen (subscriber, #97) [Link]

The main issue would be that code would probably have to be housed, developed, and stored outside of the countries with lunatic patent laws. There is probably some precedent that even if code is '#define' out of working, it could be looked as either negligence or aiding and abetting criminal intent

Use of patented code in the kernel

Posted Dec 29, 2003 13:52 UTC (Mon) by wookey (subscriber, #5501) [Link]

I don't actually think this is practical, but it would be really nice if something like this could happen (especially if it moved to somewhere in Europe) as a concrete illustration of why Europe will benefit from better software if it keeps software patents out (as opposed to following the US route).

Politicians need real examples of 'we moved our business from the US to Europe because the legal patent environment was so much more favourable to developers and innovation'. OK kernel development isn't exactly a business, but a lot of business do rely on it, and it's high-profile enough for people to take notice.

Much like the daft US crypto-export laws, patches and software were maintained elsewhere and everyone except Americans benefitted, and eventually the US had to back down. Something similar needs to happen with patents.

Of course the battle in Europe is by no means won and we could be moving things again by the end of next year if the pro-patent lobbyists win (and they include many powerful institutions and organisations, who have woken up now, having lost the first round).

Migration out of US

Posted Dec 25, 2003 4:38 UTC (Thu) by mepr (guest, #4819) [Link]

I would like to comment that while there have been a few cases of the decss type, i.e. dmca, and the idea (in reference to the dmca) that a trade secret should have trade secret protection when it is no longer a secret is probably well described as odious, I must still put a plug in for 'Freedom of Speech' in America, which still has few rivals in the world for the freedom to say what you want on the internet or anywhere else, and in this context I must object to the US being compared to China in this thing (although I am not objecting to your ability to make such a comparison).

Canada and Europe have already passed numerous laws restricting political speech. The restrictions, from place to place, forbid things like criticizing homosexuality, espousing racism, protesting abortion and saying things which the government deems to blaspheme the Virgin Mary (that one, of course, is in Italy). Part of that list are thngs many readers might say, "and good riddance to it." Others, maybe not.

Still, it is a privilege to live in a country where such subjects are still open for discussion. There are governments in Europe who have stated quite openly on multiple occasions that the reasonon ertain horrible happenings were so bothersom was not because they happened but because the world might here about it. In other words, it is less important that there be no problem than that people think there is no problem.

The fact, for another example, that the mainstream media has been allowed to relentlessly criticize the US government's prosecution of the Iraq war is a great testimony. Modern Russia, would have, and has actually, responded by throwing the media owners in jail and assuming control. We have often criticized the government for not doing enough to crush the Microsoft monopoly. But America has also allowed the "lead developer" for Linux to live in America, and Linux this fall surpassed Microsoft in server shipments.

What I am trying to suggest is that America is imperfect but we should give it credit for what it is good about it. If we claim now to have already lost what we still have, we may find the day comes when those who say they bring our freedoms back will deny us the freedoms we have today, and those of us who have cried wolf will not be listened to. Most, will, in fact, probably keep their mouths shut.

Migration out of US

Posted Dec 25, 2003 6:31 UTC (Thu) by error27 (subscriber, #8346) [Link]

The restrictions, from place to place, forbid things like criticizing homosexuality, espousing racism, protesting abortion and saying things which the government deems to blaspheme the Virgin Mary (that one, of course, is in Italy).

I've never wanted to do any of those things but I do like to write software... :/

It's something I worry about in a personal way pretty often. I've written security auditing tools (DMCA), and a p2p program (RIAA) and any decent size software is going to violate patents. (For legal reasons it's not wise for programmers to discuss software patents, so I won't discuss it any more.)

It makes me sad, that people are not free to think about and program whatever they want. I only offer my programs to people who want them. I'm not hurting anyone.

Migration out of US

Posted Dec 28, 2003 22:08 UTC (Sun) by giraffedata (subscriber, #1954) [Link]

I'm not hurting anyone.

Of course you are. You're hurting anyone else who would sell alternatives to your program. In the usual words of monopolists such as labor unions, you're taking food out of the mouths of your own compatriates.

So yes, you have to consider the issue as to whether someone else -- a person who possibly invented the technology you're distributing -- has a greater right to income from the invention than your right to engage in your hobby.

Migration out of US

Posted Dec 30, 2003 0:14 UTC (Tue) by error27 (subscriber, #8346) [Link]

I really meant that my software doesn't hurt anyone in a more direct way. For example, releasing viruses and worms should obviously be illegal.

To me it's not so much a hobby vs income type thing but a free speech issue. Calling something a hobby just trivializes it. Is writing GCC a hobby for RMS?

Even ignoring the free speech issues and assuming that I just wrote software as a hobby, the patent system is still very broken. I can't patent anything as a hobby because that would be too expensive and I don't make money as a hobbiest. The patent system only hurts me and doesn't offer me anything in return. In one case there was a company that patented extensions to Free Software which I have contributed to. They used it internally without releasing the source.

But to me, the issues of Free Speech and thought are what matter most.