LWN: Comments on "The trouble with OpenBTS"

Broken link

Max.Hyre — 2009-08-05T19:10:02+00:00

I get a 404 following

http://openbts.blogspot.com/2009/02/misunderstanding-about-injunction.html

Do you have an update? (Or is it just me?) Reading his other entries makes me think the one referred to will be worth reading.

Antarctica - What law applies?

jimwelch — 2009-03-06T15:30:10+00:00

According to Wikipedia, Antarctica by treaty belongs to no country! (yet) So no laws apply?

GSM patents aren't the problem, Martone is

hssamra — 2009-03-01T00:55:57+00:00

Just so everybody understands that Kestrel is not being sued for GSM infringements...

http://openbts.blogspot.com/2009/02/misunderstanding-abou...

Non-profit Patent Utilization

giraffedata — 2009-02-28T19:49:59+00:00

I still can't believe the Supreme Court of Canada sided w/ Monsanto.

You mean you can't believe it misapplied the law so badly or that the law is so stupid? I don't claim to know this law, but I have faith that the Supreme Court at least came close to a legally correct decision, even though I feel plenty of moral outrage.

It very well could be that the individuals are breaking the law and knowingly using patented strains, ...

That's the thing: it's not a matter of breaking the law, just of civil liability. As a civil lawyer, I'm frequently vexed by people who confuse being liable with being a criminal. The court isn't saying the farmer is a despicable thief -- just that in the grand scheme of the Canadian system of wealth distribution, money (or canola plants) now in the farmer's hands belongs in Monsanto's.

And it could be one of those cases where the law sacrifices justice in some cases in order to increase justice overall. Patent law in particular, being entirely artificial, is subject to quirks like this.

Non-profit Patent Utilization

dirtyepic — 2009-02-28T05:36:50+00:00

i still can't believe the Supreme Court of Canada sided w/ Monsanto. i'm a land surveyor and every year Monsanto hires us to mark out the legal boundaries of suspected "infringer's" land so they can legally take crop samples of canola plants that have grown over into the road allowance. i'm told the landowner then has three options - pay for a licence, burn the crop, or hand it all over to Monsanto. (ie. pay for a licence)

it very well could be that the individuals are breaking the law and knowingly using patented strains, but Monsanto's track record still makes me unenthusiastic about working for them. they're basically the patent troll of the agricultural industry.

anyways, what were we talking about again? ;)

GSM patents aren't the problem, Martone is

literfizzer — 2009-02-27T22:03:47+00:00

Most (well, I stopped after the first dozen or so) comments seem to be saying that GSM patents are the problem here. That's not how I read it. I've read Kestrel's petition to the court, and they're actually using GSM patents as proof that Martone has no claim to any IP in OpenBTS. It is Martone who has sued and received this preliminary injunction restricting dissemination of OpenBTS source code.

The trouble with OpenBTS

rwmj — 2009-02-27T11:02:01+00:00

It's only by accident that we rely on "IP" protection for this. It is, if you like, a hack on the law
(exactly the same hack makes it possible for companies to impose onerous restrictions on you in
licenses, so it works both ways, not necessarily for good). It's just another peculiarity that copyright
allows companies to write extra law to apply to users of their works.

So I'd be happy for all that to go away and a narrow law to be created specifically to ensure that
companies can't rip off and hide open source code.

The trouble with OpenBTS

dlang — 2009-02-27T10:28:52+00:00

in that case isn't it equally fair for companies to ignore all the "intellectual property" nonsense and get on with the buisiness of copying opensource, modifying it, and shipping it in products without providing the source?

The trouble with OpenBTS

rwmj — 2009-02-27T10:12:05+00:00

What strange laws we bind our own hands with. The best thing by far in this case is to simply ignore all the "intellectual property" nonsense and get on with downloading, distributing and extending the code.

Non-profit Patent Utilization

wmfa — 2009-02-27T04:56:36+00:00

Damn spellchecker. I hate your=you're and now its my fault. Sorry all.

Non-profit Patent Utilization

wmfa — 2009-02-27T04:52:29+00:00

OK, so you're discouraging one of the popularized myths of amateur radio. You should see how the antenna fabrication community in particular behaves this way. Of course I also have serious doubts about the strength of the patents in question, so maybe the owners know better than to try. I've always wondered, but since the HAMs are so dogmatic about compliance with other federal regs (namely, their spectrum allocations), I just figured there was a basis for this behavior.

I knew about the rice/corn story - the Monsanto case made a lot of press. But one difference between that and a nonprofit is that the farmer was actually making his living that way - at the end, he'd be selling his (according-to-the-law-stolen) product. I wonder, though, if some of the stuff blew into my backyard and I harvested a bushel and put it on my dinner plate, if it would still be relevant to the same case law. I am *so* not a lawyer that I'm probably barking mad for just thinking out loud about all this.

You're point about being sued, though, is entirely right. I was once told that the only thing required to enter into a lawsuit is $40. And that's true enough. Same guy also told me that you're nobody until somebody sues you. I didn't like that part.

Non-profit Patent Utilization

giraffedata — 2009-02-27T01:24:39+00:00

As long as you're doing it for yourself, not making any money on it, and so forth, you can violate the patents all you want.

If you mean because the patent holder won't bother to sue you, OK.

In fact, it is the enabling publication of patented methods that is supposed to be a part of the public good that the patent system claims to provide

The public good claimed isn't that people can then use the invention for free. It's that they can then license the technology from the patent holder, and years later use it for free.

isn't there some issue that before you can be sued for violating a patent it has to be proven that you made a profit off the technique? Or is proof of "harm" sufficient?

You mean before you owe someone money for patent infringement; you can always be sued. Proof of harm is sufficient. Besides, profit is easy to show if you were using the invention personally, because you wouldn't use it if you weren't getting more out of it than it cost you.

I just wonder if there's some kind of free-usage spirit that makes the entire patent question go away.

I'm not an IP lawyer, but while I've heard a lot about the doctrine of fair use in copyright, I've never heard of anything like it in patents.

My favorite example of how absolute patent rights are is where seeds of a patented strain of rice blew onto a rice farmer's land. He thus unintentionally and unavoidably started growing this rice. The only benefit of this rice is that you can spray it with Roundup herbicide and it won't die, and since this farmer doesn't use Roundup, he gets no benefit from it. The courts said the farmer owes the patent holder (Monsanto) the same money that farmers who voluntarily license the patent pay.

The trouble with OpenBTS

giraffedata — 2009-02-27T01:03:38+00:00

IANAL, but they can still use internet FTP sites, FTP to E-mail converter, or even snail mail CDs to anybody... that is compatible with GPL

I've never seen the definition of web site come up, but I can tell you law is generally not technical like that, and I doubt a judge would consider "web site" to refer to the HTTP RFC or Port 80 or whatever. He would probably say it means things you access via web browsers, which is a very common way to access an FTP site. Snail mail would be covered if you ordered it via a web page.

As an example of the non-technical definitions courts sometimes use, last year a judge found that "megabyte" meant 2**20 in some Seagate capacity claims, even though there's a technical specification that says it means 10**6. (Ergo buyers of the drives didn't get all the space they bargained for).

The trouble with OpenBTS

giraffedata — 2009-02-27T00:52:05+00:00

IT IS HEREBY ORDERED that Defendants and their agents, officers, directors, employees and anyone acting on their behalf are enjoined from making available on any internet website any algorithm, computer code, software, technical information or any other intellectual property or technical data relating to any base station transceiver
This one is hilarious.
Freedom of speech for the win.

I take it you've never seen a gag order before? Because these are extremely common in cases like this and a well recognized exception to freedom of speech. There thus is nothing even mildly amusing here.

I was impressed by the atypical restraint the judge observed in 1) limiting the gag to web sites -- the information isn't totally locked up; and 2) he continues, "unless they gather and preserve the names, ..." which means it's even OK to distribute it on a web site. (I presume the idea is that if it turns out the recipients owe Martone money, Martone will be able to find them and collect).

Non-profit Patent Utilization

wmfa — 2009-02-26T04:09:32+00:00

Being a mildly-new HAM radio geek, it seems to be quite common practice to see amateur radio techies borrowing techniques and features from known published patents all the time. As long as you're doing it for yourself, not making any money on it, and so forth, you can violate the patents all you want. In fact, it is the enabling publication of patented methods that is supposed to be a part of the public good that the patent system claims to provide (insert jaded bias here).

IANAL, but isn't there some issue that before you can be sued for violating a patent it has to be proven that you made a profit off the technique? Or is proof of "harm" sufficient? Anyway, I just wonder if there's some kind of free-usage spirit that makes the entire patent question go away.

When do the patents expire?

jonth — 2009-02-25T21:21:36+00:00

Actually, it's 13kb/s, and it's not the rate, it's the codec. A new, enhanced FR codec was introduced in around 1996. Trust me, the difference is extraordinary.

When do the patents expire?

Cyberax — 2009-02-25T16:54:21+00:00

A lot of operators still use 9600 bit rate for voice. It's not that bad.

Actually, 1991 standard should suffice, since you probably won't need GPRS for your local base station.

The trouble with OpenBTS

mjw — 2009-02-25T16:29:26+00:00

Agreed completely. For a distribution based in a jurisdiction where someone actively tries to ban some freedoms through patent claims, or for a distribution backed by sponsors that are easy targets for evil patent trolls this is a very serious problem.

But you shouldn't hold that against such a distribution. They are just forced to not distribute some Free Software that others can and will happily distribute to their users. That doesn't make such a distribution less free. It just means they ship a different selection of free software out of necessity.

The trouble with OpenBTS

rahulsundaram — 2009-02-25T15:18:52+00:00

"Sure, if there is active enforcement by a patent holder against you for distributing a specific piece of software then you might effectively be forced to stop any distribution of the code even if it is Free Software. But that also cannot be hold against you as distributor"

Given that Red Hat and Novell is currently fighting a lawsuit for some patent infringement claims, I do think that distributions can be held liable by patent holders. In places where software patents are valid and enforced, the effect of patents are similar or actually worse than copyright restrictions.

The trouble with OpenBTS

mjw — 2009-02-25T14:37:00+00:00

All software is potentially patent encumbered. I don't believe you can hold any hacker or distributor responsible for that fact (except if they are actively restricting their users rights through patent claims they hold themselves of course).

GNU/Linux distributors are producing and shipping Free Software. They have no influence on the patent restrictions some third party might wish to add to prevent users from exercising their basic free (copy)rights.

Sure, if there is active enforcement by a patent holder against you for distributing a specific piece of software then you might effectively be forced to stop any distribution of the code even if it is Free Software. But that also cannot be hold against you as distributor, you did try to distribute Free Software (given that the copyright licenses were all free).

The trouble with OpenBTS

rahulsundaram — 2009-02-25T14:09:19+00:00

"You should be concerned about people and organisations using patents as restrictions on Free Software. But it is not something a software hacker or a (re)distributor can be held responsible for directly."

I am not sure what you mean by that. If you distribute patent encumbered code, wouldn't you be held responsible directly as a distributor? The solution then is to stop distributing code when there is active enforcement by a patent holder.

The trouble with OpenBTS

mjw — 2009-02-25T13:54:46+00:00

Well, that makes sense, doesn't it? There is a big difference between copyrights and patents. The copyrights "attach" to the distributor, a distribution is in control of any copyright restrictions they pass on to their users. Restrictions that come from someone enforcing some patent that they claim cover some specific use case by a specific user are completely out of control of the distributor.

That doesn't mean people using patents restricting who can use some free software aren't doing something that is something to be worried about. But it isn't anything a free software distribution itself can directly do anything about.

Sadly it is a fight that free software distros cannot fight in the same way they can fight copyright restrictions, those restrictions can be ripped out and worked around by replacing pieces of code without any restrictions based on copyright. Whether or not any patent claim applies to any software however is completely unclear and depends heavily on how and where the user uses the software for a particular purpose. You will have to fight for the freedom from patents in a completely different way from copyright restrictions.

You should be concerned about people and organisations using patents as restrictions on Free Software. But it is not something a software hacker or a (re)distributor can be held responsible for directly.

When do the patents expire?

chsnyder — 2009-02-25T13:53:34+00:00

Indeed. One could do A LOT with wide-area 9600kbps wireless data coverage and/or free sms, now that we have tiny linux devices that can speak to those networks.

As with any other industry where service providers build a wall of IP around their offerings, the innovation that comes with casual use is stifled in favor of a few narrow channels of maximum profitability.

One needs only to look at Twitter to see that there is enormous value to society in free short mobile messaging services. Someone could have realized that back in the 90s, and probably did, but the phone company's business models prevented most people from thinking of sms that way. How can you imagine building a city- or region-wide sensor network on top of gsm services when each node would cost $30/mo plus 25 cents per message? You can't.

Change the cost per node to $20/year (or free!) and it becomes doable.

Not likely to be a problem with patents

mjr — 2009-02-25T13:49:43+00:00

While your assessment seems overoptimistic, its general direction doesn't.

More spesifically, I see this system as having most (not all, but most) of its potential use in developing countries. Of course the developed world has lobbied for ever stronger patent and copyright restrictions around there too (often tying slightly more freedom of trade for physical goods to significantly less freedom in general (trade included) for information in a cringeworthy double standard).

But I wonder if GSM patent holders have bothered to apply for relevant patents in every technological backwater, considering that they are indeed generally country-specific. I don't know, but I doubt it. Anyone have any solid data on this?

The trouble with OpenBTS

rahulsundaram — 2009-02-25T12:59:25+00:00

I wasn't doing any analysis. You should look beyond the page hierarchy and read the content which has a reply from RMS on his position on software patents. My point is that that FSF is ok with Free software implementing patented technologies and has called distributions as Free despite them including patent encumbered code. In other words, they differentiate between copyright license restrictions (which they refer to as a non-free) and patent restrictions on Free software.

National law trumps local law

tialaramex — 2009-02-25T10:55:34+00:00

Typically local and regional government are prohibited from overriding certain broad classes of national or trans-national law. In the case of national law this is enforced by the national government's own courts and police. So if rural Alaska decides to ignore the patent rights granted to "intellectual property owners" by the US congress, the Federal government is able to enforce those rights anyway, in extremis by sending armed Federal agents to confiscate the base station hardware.

As far as I know though there is no /international/ law of patents, so in places which either don't recognise patents nationally, or are outside any legitimate national territory (which might include Antarctica) it could be legal to ignore the patents.

Of course any nation or other sovereign entity can simply reject patents, or savagely reduce their force, but if years of arguing by economists, law makers and Free Software evangelists haven't convinced a country to do that, I hardly think that a free GSM cell for a small village or research station will make the difference.

The trouble with OpenBTS

etienne_lorrain@yahoo.fr — 2009-02-25T10:46:37+00:00

IANAL, but they can still use internet FTP sites, FTP to E-mail converter, or even snail mail CDs to anybody... that is compatible with GPL.

The trouble with OpenBTS

hppnq — 2009-02-25T09:24:59+00:00

I don't think FSF was ever that concerned about patent encumbrances.

Did you read the article, and the blog referenced in it? That explains this particular situation a whole lot better than your "analysis" does. Certainly you should know better than to suggest that the FSF does not care about software patents.

When do the patents expire?

eru — 2009-02-25T03:36:58+00:00

If you want to go with a 1991 standard network, you'll get voice at crappy quality and that's about it.

The voice quality problems of the 1991 GSM were mainly implementation issues in the first generation equipment. Also, text messages and 9600bps circuit-switched data were already in the original specs (although not initially implemented). For the archetypical "cellular service for the poor rural masses", even these features should be plenty. More could be added as the patents expire...

When do the patents expire?

ncm — 2009-02-25T01:37:28+00:00

It may be useful immediately in places where patents restrictions don't apply, or are unlikely to be enforced.

At last report McMurdo station (Antarctica) had no GSM cell. Given McMurdo's telecomm difficulties, one might only be useful for talking to others near McMurdo, but that alone could be useful enough to bother setting it up.

Not likely to be a problem with patents

jmorris42 — 2009-02-25T00:05:41+00:00

The only places in the world where you could legally deploy this software are also likely to be places where the patent problems won't be a problem.

You will need the blessings of the local government pretty much anywhere and if the local government has bought into the idea of cheap cell service in the rural areas of their country the patent problems will likely disappear.

When do the patents expire?

jonth — 2009-02-24T23:49:20+00:00

Only if you use the 1991 versions of the specs. The specs are constantly updated, adding all sorts of features. From memory, 14.4kb/s circuit switched data (remember that?!) was added around 1995, GPRS was deployed in 2000 or so, then 3G, then HSDPA, then HSPA, HSPA+, LTE...

If you want to go with a 1991 standard network, you'll get voice at crappy quality and that's about it.

Every time a new feature is added, there's a massive bunfight over whose "essential IP" gets into the spec. So within the industry there's a big push to keep adding new (encumbered) features to the standard no matter how unnecessary. The more the merrier. It's sort of like a nuclear escalation, 1960s style. As long as all the interested parties have roughly equal parts of the IP, everyone's happy.

The trouble with OpenBTS

rahulsundaram — 2009-02-24T23:00:29+00:00

"In other words, the FSF is distributing code with known restrictions on its use; this is a bit of a change for an organization which is not normally enamored of software which is only available for "private experimental use."

I don't think FSF was ever that concerned about patent encumbrances. They are completely ok with say a distribution including MP3 codecs.

http://fedoraproject.org/wiki/FreeSoftwareAnalysis/FSF

The trouble with OpenBTS

theraphim — 2009-02-24T22:55:32+00:00

IT IS HEREBY ORDERED that Defendants and their agents, officers, directors, employees and anyone acting on their behalf are enjoined from making available on any internet website any algorithm, computer code, software, technical information or any other intellectual property or technical data relating to any base station transceiver

This one is hillarious.

Freedom of speech for the win.

When do the patents expire?

JoeBuck — 2009-02-24T22:48:27+00:00

Given that the GSM standard was published in 1990 and the first GSM network was deployed in 1991, it would seem that the patents should run out very soon now.

When do the patents expire?

Per_Bothner — 2009-02-24T22:09:12+00:00

While OpenBTS may have limited/uncertain usefulness in the short term, it could still be a useful investment for the future, ready for when the patents run out.