The decision to use the MIT License is not without its critics [LWN.net]

The decision to use the MIT License is not without its critics

Posted Jun 15, 2021 21:25 UTC (Tue) by khim (subscriber, #9252)
In reply to: The decision to use the MIT License is not without its critics by Wol
Parent article: Rewriting the GNU Coreutils in Rust

> If you sue me and claim that this means I agree software patents are invalid so I can't countersue, I promptly move for summary dismissal because you also agree that software patents are invalid, oh and can I also have you pay my court costs because you're suing me with patents you've just admitted are invalid therefore if it's not malicious it's negligent thank you very much.

I think you have lost the forest for the trees. The distributor of your software agreed that software is a math and lost a chance to use software patents for a countersuit. His opponent haven't agreed to anything. Thus distributor couldn't use patents offensively, but is still under threat of patent lawsuits from others.

So yes, you have just gave the distributor another incentive not to touch your program.

Have you ever looked on any patent battles which were exposed on LWN? Why do you think patent lawsuits are usually settled instead of patents being invalidated? The answer is simple: because it's almost impossible to invalidate a patent! Once it's granted it's considered valid and you would need to, basically, go to the supreme court before you get invalidation will all rounds of appeals.

What happens instead is, usually, countersuit. And the best way to do it is to use your own patents. You don't claim that patent which was used to sue you is invalid. Instead you find some other patent which belongs to someone who you don't think would sue you and show it. Ideally an expired one. And claim that since that patent is also valid your software is not infringing.

Like: patent troll says that his innovation covers all the ways of drawing lines on a computer screen. You find a patent which explains how to draw lines using pixels and say to judge: “yes, plaintiff made great discovery and found a way to draw lines on a screen… that's certainly great and innovative achievement, but certain ways of doing that were known before — and here is patent that proves it”. And that's it.

Judge is happy because s/he doesn't need to pass through 10 layers of appeals, you are happy because you proved that you can draw lines on a screen… and even patent troll is happy because s/he can go and sue some other people because patent used for that is still valid (even if a bit damaged). And if he would agree to stop patent lawsuit and grant you license instead… then it's not even the least bit damaged! Without court decision it's not precedent!

This is the most cost-effective way of dealing with patents. And your “simple” clause makes it much, much harder (if not impossible) to use. Because now distributor have to somehow defend itself without bringing counterpatents to the table.

> Well, in America "cost effective" usually means "make the opponent lose worse", even if they are in the right. As I said, that's likely to prove seriously masochistic over here :-)

Maybe, but as long as you have to deal with US (and it's still one of the most lucrative markets) you have to deal with patents. Simply because you declared that software is not patentable doesn't mean patent trolls would agree.

Same here. Difference is, trying to sue your opponent into bankruptcy (popular with deep-pocketed Americans) is likely to end with you suing *yourself* into bankruptcy.

Oh, don't worry, that art would come to other parts of the world, surely. It's not even that hard: just sell your patent portfolio to dozen of pure trolls which can be bankrupted safely and see how many rounds of litigation the target firm would sustain.

You don't even need to actually coordinate lawsuits (and be accused of doing shady acts), just sell hundred patents to hundred patent trolls with list of companies which are infringing and make sure your target is there in top10.

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The decision to use the MIT License is not without its critics

Posted Jun 16, 2021 8:53 UTC (Wed) by Wol (subscriber, #4433) [Link] (1 responses)

> > If you sue me and claim that this means I agree software patents are invalid so I can't countersue, I promptly move for summary dismissal because you also agree that software patents are invalid, oh and can I also have you pay my court costs because you're suing me with patents you've just admitted are invalid therefore if it's not malicious it's negligent thank you very much.

> I think you have lost the forest for the trees. The distributor of your software agreed that software is a math and lost a chance to use software patents for a countersuit. His opponent haven't agreed to anything. Thus distributor couldn't use patents offensively, but is still under threat of patent lawsuits from others.

You seem to be ordering me to give a damn.

Guess what, I DON'T.

> What happens instead is, usually, countersuit. And the best way to do it is to use your own patents. You don't claim that patent which was used to sue you is invalid. Instead you find some other patent which belongs to someone who you don't think would sue you and show it. Ideally an expired one. And claim that since that patent is also valid your software is not infringing.

Which is EXACTLY what I'd do. I'd let *them* claim my patent is invalid "because it's maths".

And because over here, the civil courts are courts of JUSTICE, I'd say to the Judge "please rule that software is maths, pretty please". Bang goes their case. And because we don't have the idiocy of doing ALL the discovery, THEN ALL the arguments, this would probably all be dealt with in summary judgement at the start of the case.

> Maybe, but as long as you have to deal with US (and it's still one of the most lucrative markets) you have to deal with patents. Simply because you declared that software is not patentable doesn't mean patent trolls would agree.

And if I don't give a damn? Plus, how long is it going to be the most lucrative? President Trump did a LOT of damage trade-wise to the US. China is growing rapidly in importance. Europe has been really spooked and will be seriously concerned about standing on its own two feet. India is a big and lucrative market.

America has been isolationist for most of its history. I think it's very soon going to find that Trump's mis-steps are going to haunt it and drive it back into isolation. On a personal level, the less I have to do with the US the better, and I think many Americans would be surprised how widespread that sentiment is. (Individual Americans, on the other hand, are nice. Including a lot of my relatives :-) But that's pretty normal for any country :-)

Cheers,
Wol

The decision to use the MIT License is not without its critics

Posted Jun 16, 2021 9:51 UTC (Wed) by khim (subscriber, #9252) [Link]

> Which is EXACTLY what I'd do. I'd let *them* claim my patent is invalid "because it's maths".

Why would they do that? They would be happy to add slander to your case. Because they still think that patents are valid and now you, too, agreed with that and that explicitly contradicts your previous steps (when you agreed to accept that code falls foul of the legal bars to being patentable subject matter). Court would need to decide what kind of outcome is actually valid (as usual: after years of appeals) but since harm is mounting (distribution software without license is big no-no) then can we have that travesty stopped?

Cease the distribution of that software and then we can continue. And that (preliminary injunction with the decision to stop distribution) may actually happen pretty quickly (few months).

> And because over here, the civil courts are courts of JUSTICE, I'd say to the Judge "please rule that software is maths, pretty please"

What law would give judge the right to say that? Courts may be “courts of justice” in the country where you live but they still can not invent rules on the fly, they have to follow law. That's the whole point of separation of power. Judges may think that software is math, it's their right, but as long as it's not part of some law they can not use that for court proceedings. The privilege of turning such beliefs into something you can use in court belongs to legislature branch, not judiciary.

Only high, final, courts in some countries have the right to “bridge the gap” and then, only in rare cases where one needs to “harmonize the law”, anyway.

> Bang goes their case.

Lol. I think you have never been in court. Not even as witness. “Bang goes their case” is almost never the case. And when you try to bring facts not explicitly mentioned in any law (as you repeatedly have tried to do in your mental exercises) appeals and repeated hearings may take years.

> And if I don't give a damn?

That's your right, of course. But as one of my friends likes to say “why would you pick such an extravagant way of self-mutilation?”

If you want to make sure others wouldn't use and/or distribute your software… you can just write so. No need to elaborate complex schemes which would lead to the same thing in the name of “fight against the software patents”.

> I think it's very soon going to find that Trump's mis-steps are going to haunt it and drive it back into isolation.

Possible. This would plunge the Europe into chaos, though, which may render question of software patents moot point because noone discusses software patents in Somali: they have more acute, more pressing, needs.

Do you really plan to release software with the goal of it only be usable after collapse of Western Civilization? That's a bit crazy.

> China is growing rapidly in importance. India is a big and lucrative market.

Indeed, China is growing and India may become more important with time, too. But they also fill patents like crazy. Including software ones. Do you really think they are doing this because they plan to continue to believe that software is a math and can not be patented?

Newcomers always try to somehow ignore patents. Incumbents always [try] to use them to protect itself. US was pretty negligent WRT copyrights and patents while it was growing in power. It only started to vigorously assert them when it couldn't grow.

If and when Europe would start failing (and without US backing it's inevitable) — it would double-down on software patents, don't worry. Same with China and India: if China would feel threatened — software patents would ineveitably become valid.

> Individual Americans, on the other hand, are nice.

Indeed. But individual Americans like individual Germans, individual Russians or, heck, even individual Iranians, never decide how laws of their country would be shaped. You need a political movement for that, not an obscure line in the license for the obscure software.

The decision to use the MIT License is not without its critics

Posted Jun 16, 2021 8:58 UTC (Wed) by Wol (subscriber, #4433) [Link] (1 responses)

> > Same here. Difference is, trying to sue your opponent into bankruptcy (popular with deep-pocketed Americans) is likely to end with you suing *yourself* into bankruptcy.

> Oh, don't worry, that art would come to other parts of the world, surely. It's not even that hard: just sell your patent portfolio to dozen of pure trolls which can be bankrupted safely and see how many rounds of litigation the target firm would sustain.

Unless it wouldn't ...

> You don't even need to actually coordinate lawsuits (and be accused of doing shady acts), just sell hundred patents to hundred patent trolls with list of companies which are infringing and make sure your target is there in top10.

And I wouldn't bother suing the patent troll for costs. At the slightest HINT of what you suggest, I'd go for the troll's directors and sue THEM. PERSONALLY.

Yup, it might prove expensive defending the first couple of lawsuits. But I doubt I'd have many trolls willing to put their personal wealth on the line ...

(I think "piercing the veil" with a patent troll company wouldn't be that hard.)

Cheers,
Wol

The decision to use the MIT License is not without its critics

Posted Jun 16, 2021 10:05 UTC (Wed) by khim (subscriber, #9252) [Link]

> And I wouldn't bother suing the patent troll for costs. At the slightest HINT of what you suggest, I'd go for the troll's directors and sue THEM. PERSONALLY.

So you would sue someone who's work is, quite literally, to be sued? Big deal.

The actual guys behind the whole thing would laugh all the way to bank.

> (I think "piercing the veil" with a patent troll company wouldn't be that hard.)

Have you ever tried to do this? Sigh. I wish you will read the The Little Golden Calf. Then you would know who Sitz-Chairman Funt is. Actual wikiquote may just be enough:

Sitz-Chairman (зиц-председатель, zits-predsedatel), a strawman chairman. The Horns and Hoofs was headed by Sitz-Chairman Funt. The title is a bilingual Russian-Yiddish pun. The Yiddish word "sitzen" means "to sit", which in Russian connotes "doing time". Also "Sitz" has legal meanings similar to the English "seat". The sole function of a Sitz-Chairman was to do prison time when (not "if"!) the time comes (Compare Sitz-redakteur, a person hired by a 19th century German newspaper for the same purpose).

Note the last phrase. It all was invented in good old Europe and, don't worry, it will be back sooner or later.