Linux Scare Tactics (Forbes) [LWN.net]

Here's a Daniel Lyons piece in Forbes with a rather cynical view of the OSRM's report on possible patent issues in the Linux kernel. "Linux advocates howl that SCO is running a shakedown racket. They point out that SCO still won't say which parts of Linux contain stolen SCO code, nor will SCO name Linux users it claims are paying license fees to SCO. Similarly, OSRM says there are 283 patents that Linux may violate, but won't say what those patents are. (OSRM says it will tell customers who insist, but warns this could make customers vulnerable to claims of 'willful infringement,' which could lead to triple damages.)"

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Linux Scare Tactics (Forbes)

Posted Aug 2, 2004 20:06 UTC (Mon) by rsidd (guest, #2582) [Link] (11 responses)

I agree, this "smells to high heaven". If OSRM are worried about the implications of these patent violations, they can tell Linus and friends. If they think some of these patents are invalid, they can try to mount a legal challenge to those patents. But not saying what these patents are, and instead selling insurance based on scare-mongering: isn't that SCO's business plan? Perhaps Pamela Jones of Groklaw can explain why she thinks this is different.

Linux Scare Tactics (Forbes)

Posted Aug 2, 2004 20:19 UTC (Mon) by JoeBuck (subscriber, #2330) [Link]

I'm not crazy about what they are doing, but if I were Linus and these guys offered to send me the list, I would urge them not to, and furthermore if they did I would delete the mail unread. That's because of the way patent law works: knowing infringement triples the damages if the patent is ultimately upheld and a court decides that Linux infringes.

In any case, it it quite likely that Windows as well as OS X also violate at least half of those patents; there are tons of bogus patents out there. Most patents are flawed in some way, are ridiculously overbroad, or have tons of prior art making them legally questionable. Linux (and BSD) are more vulnerable because patent violations are easier to find. But Windows isn't safe if a war breaks out.

Are you sure you want to see the list?

Posted Aug 2, 2004 20:47 UTC (Mon) by BrucePerens (guest, #2510) [Link] (6 responses)

You can see the list. You may be contaminated afterward and exposed to triple damages if you infringe because you would then be knowingly infringing. Any volunteers? Those of you who don't get involved in software development might be reasonably safe ones. I can set you up with the right people. For the protection of everyone else, I would ask that you not publish stuff that could contaminate others. But that should be easy enough.

By the way: I'm not going to look at that list, I do too much software development.

Bruce

Are you sure you want to see the list?

Posted Aug 2, 2004 21:14 UTC (Mon) by sbergman27 (guest, #10767) [Link] (2 responses)

I agree that we need the infrastructure in place ahead of time. However, the fact is, for whatever reason, Linux has not yet been the target of patent suits. They may be on the way, but where are they? Linux is already stepping on a lot of proprietary toes and we are not seeing the rash of suits that people have been predicting since the mid 1990's.

My point is, why are we starting off the scare mongering ourselves? Why are we adding (what is it? $150,000?) to the cost of using Linux in the absence of a real and present problem. The only reason I can see is that it's good for OSRM's bottom line. I've not seen anything indicating a nonprofit status for OSRM.

Are you sure you want to see the list?

Posted Aug 3, 2004 5:10 UTC (Tue) by BrucePerens (guest, #2510) [Link] (1 responses)

Well, all of the conditions are in place for someone to start the lawsuits with a bang. A big bang. If MS were to do it, I'm sure they would pattern it after the RIAA and file 500 at once.

It may be that they continue to wait until the software patenting situation in Europe firms up. But if some little twerps like SCO could do what they did, I'm not going to sit around and think that the patent lawsuits might never come.

Bruce

Are you sure you want to see the list?

Posted Aug 3, 2004 13:53 UTC (Tue) by pdsdst (subscriber, #19395) [Link]

They must wait or else the negative impact of the EPO version of the patent directive on the European economy will become all too clear for the politicans. Currently most of them think software patents are good because the US seems to be doing just fine (remember, they are not programmers and much closer to lawyers in their thinking).

One thing to remember about European politicians though is that if they implement a stupid directive that later turns out to threaten EU jobs (directly or indirectly) they do have the resolv to change it. At least if it is a US company that is the threat.

Daniel

Are you sure you want to see the list?

Posted Aug 4, 2004 8:53 UTC (Wed) by viro (subscriber, #7872) [Link]

How elegant... So let me get it straight - you have not seen the
list; you won't look at it and neither should anybody doing software
development. May I ask who had created that list, what kind of
credentials do they have and how much do you really trust their
ability to analyse the code and accuracy of their conclusions?

Are you sure you want to see the list?

Posted Aug 4, 2004 15:16 UTC (Wed) by Oddly_Drac (guest, #23754) [Link]

> Any volunteers?

Sure. Until the US annexes England, I don't see much happening in terms of patent infringment until the rules are shoehorned thorugh the EU.

> For the protection of everyone else, I would ask that you not publish stuff that could contaminate others.

I take it that the EFF has received the list, or that someone is undertaking to notify the authors of potentially infringing software that they might want to investigate a different way of using method X, or are you suggesting that the problems are more fundamental?

> I'm not going to look at that list, I do too much software development.

How are you going to develop in the future? Hum loudly whenever anyone mentions a patent to get a 66% reduction in the final award?

Are you sure you want to see the list?

Posted Aug 10, 2004 1:38 UTC (Tue) by Olinda_Spider (guest, #22366) [Link]

You can see the list. You may be contaminated afterward and exposed to triple damages if you infringe because you would then be knowingly infringing. Any volunteers? Yes, I would like to see the list. How can I obtain it?

(Sorry for the delayed response, I was on vacation.)

Pat

Linux Scare Tactics (Forbes)

Posted Aug 3, 2004 14:54 UTC (Tue) by stumbles (guest, #8796) [Link] (2 responses)

I agree. This sounds similar good ol' Mr. Blepp running around in Germany with a
suitcase full of evidence but some how has not made it to the courts here. When I
first heard of OSRM and their goals, I had my doubts then. This little exercise of
theirs does nothing but cause more doubt about their real goals. Which in my view
not to really help GPL but use scare tactics to chum business for themselves. As
long as OSRM keeps these supposed findings a secret or you have to actually ask
for it, then these guys are little better than SCOG.

Let's Pay Attention, People!

Posted Aug 8, 2004 5:47 UTC (Sun) by lilo (guest, #661) [Link]

stumbles wrote:

I agree. This sounds similar good ol' Mr. Blepp running around in Germany with a suitcase full of evidence but some how has not made it to the courts here. When I first heard of OSRM and their goals, I had my doubts then. This little exercise of theirs does nothing but cause more doubt about their real goals. Which in my view not to really help GPL but use scare tactics to chum business for themselves. As long as OSRM keeps these supposed findings a secret or you have to actually ask for it, then these guys are little better than SCOG.

This is not fishy at all. Pay careful attention. This is the way patent law works: willful infringement increases the damages. If you know about a specific patent and a court decides you are infringing, you will pay and pay and pay.

If you're looking for the differences between OSRM and SCO, let's start here: SCO won't tell you the infringements without your signing an NDA. OSRM will tell you, presumably without an NDA, but they advise you not to look if you do kernel work. IANAL but from everything I've seen, it's good advice.

Another difference: SCO are the people who are trying to soak IBM for all they're worth, and are making unsubstantiated claims like crazy. PJ, the lady who runs Groklaw, is one of the people working for OSRM. I don't know about you, but I think she's done a dynamite and careful job of researching SCO's claims and filings, and has uncovered a lot of problems with them. She's one of the people who are keeping SCO from being able to play the games they're trying to play on the community. If you want a sample of her work, look at Groklaw. We have every reason to conclude she's on the up-and-up, whereas SCO's behavior speaks for itself.

Look at the business model of OSRM. Look at their own description of what they're trying to do---they're providing business risk insurance for business organizations that are nervous about attacks such as SCO's. This is a very conventional thing to do and it's a good thing to do. It's a good thing to do because it means that large organizations can reduce their perceived risk in adopting GNU/Linux and other free software. It's a good thing to do because the companies that adopt such insurance are the companies that an SCO would otherwise be attacking because they're easy prey. Risk insurance makes litigious business models less lucrative. Will OSRM make a profit? I hope so! "Free software" means "libre", not "gratis". If they're helping the community, and I think they will, they should prosper at it.

Last comment, folks. Pay attention to what's going on. Let's not attack our own. We have enough trouble from year to year without going after people who are trying to help.

Addendum (from OSRM press release)

Posted Aug 8, 2004 6:05 UTC (Sun) by lilo (guest, #661) [Link]

"Well-known patent attorney Dan Ravicher, founder and executive director of the Public Patent Foundation and senior counsel to the Free Software Foundation, reviewed all U.S. software patents that have been litigated through appeal, examining whether the Linux kernel contains technology that could trigger patent claims against end-users. In conclusion, he found that no court-validated software patent is infringed by the Linux kernel.

"However, Ravicher also found 283 issued but not yet court-validated software patents that, if upheld as valid by the courts, could potentially be used to support patent claims against Linux. In response, OSRM will be expanding its risk mitigation and insurance offerings to cover this quantifiable risk."

Troll Weekly News

Posted Aug 2, 2004 20:42 UTC (Mon) by dmarti (subscriber, #11625) [Link]

In other news, LWN founder Jonathan Corbet announced that he will be accepting a prestigious position as Curator of the Internet Museum of Trolls, FUD, and "d00d i just install3d linux and here's h0w you should rewrite it or my Grandma will never use it" articles.

Linux Scare Tactics (Forbes)

Posted Aug 2, 2004 20:43 UTC (Mon) by sbergman27 (guest, #10767) [Link] (6 responses)

Well, Bruce Perens, who is on the board of OSRM, is on Slashdot defending them. I have a lot of respect for Bruce, so I'm trying to stay open minded about this, as fishy as it sounds. Though I can't help but be reminded of Eric Raymonds initial vote of support for VA Linux when he was a board member there, right before they went proprietary.

Linux Scare Tactics (Forbes)

Posted Aug 2, 2004 20:53 UTC (Mon) by BrucePerens (guest, #2510) [Link] (5 responses)

We need to have OSRM's legal team as part of our strategy for defending Open Source developers from frivolous patent prosecution.

And by the way, did anyone think that there were no patents that could be read as applying to code used in Linux? If so, you haven't been following any of the news about how bad the patent system has become.

There is a real legal risk. It is worse than SCO because it has a firmer legal basis of a legally - although perhaps unjustly - granted patent, not a nebulous contract term or an undisclosed allegation of infringement like SCO.

Don't you think Microsoft has a plan when they increase patent filing so much?

I have been telling you folks we're in trouble about Patents since 1996.

Bruce

Linux Scare Tactics (Forbes)

Posted Aug 2, 2004 21:11 UTC (Mon) by smoogen (subscriber, #97) [Link] (1 responses)

These days you can patent breathing if you are smart about it.. and probably get it enforced for a while too.

I was expecting that the kernel would violate 1000's if not 10,000's of thousands of loose patents. I am expecting that a distribution of Debian would definately be there with various authentication patents.

There is not much that can be done about it other than getting a legal team together and start killing patents left and right with prior evidence or making sure that they are narrowed so that they dont apply.

So where do I send my money to pay for the OpenSource dreamteam?

Linux Scare Tactics (Forbes)

Posted Aug 2, 2004 22:15 UTC (Mon) by lakeland (guest, #1157) [Link]

I believe you're looking for the EFF...

Microsoft and The Plan

Posted Aug 3, 2004 2:47 UTC (Tue) by leonbrooks (guest, #1494) [Link] (1 responses)

Don't you think Microsoft has a plan when they increase patent filing so much?

Microsoft's plan to date has been:

Promise the Earth
Take the money
"You promised them what?"
Panic internally
Release vapourware
Buy something that will do the job, and badge-engineer it
Shaft the company you bought it from
Release the beta-quality software with great fanfare (spend more on the fanfare than the development)
Have the machine bluescreen in front of thousands of people when you plug the scanner in [optional]
Have support tell customers that it's their hardware, their particular system, or an unsupported configuration
Profit anyway

By nailing the feet of a lot of technology to the floor (like Mike as John Cleese in the Blender SigGraph 2004 reel), Microsoft have reduced this complex process to three short steps:

Taint down everything you can reach with a patent
Take the money
Profit

Unfortunately for them, their role when the mob arrives with pitchforks and torches will parallel that of the leader of the KoDan Armada (Lord Kril) when Alex Rogan depowers his command ship while it's in the path of a moonlet. "What do we do?" "We die".

Microsoft and The Plan

Posted Aug 3, 2004 3:23 UTC (Tue) by flewellyn (subscriber, #5047) [Link]

You get 10 zillion coolness points for quoting from "The Last Starfighter".

Linux Scare Tactics (Forbes)

Posted Aug 4, 2004 15:24 UTC (Wed) by Oddly_Drac (guest, #23754) [Link]

> I have been telling you folks we're in trouble about Patents since 1996.

We've been listening, but until such a time arrives where a landmark case actually starts to occur that could overturn a patent award, and believe me there have been some doozies recently where *I* could find prior art, we're stuck in a limbo where the only solution is to make litigator's richer.

Not only is this extending the problem further, it's just going to increase the amount of service industry dedicated to keeping coders coding and license dollars flowing through litigation. *This is a broken implementation from start to finish*

At least the EFF is starting to challenge the patents rather than say 'Here's a terrible situation, but for $9.99 you can be protected (depends on court judgement, terms and conditions apply) against the worst'.

Linux Scare Tactics (Forbes)

Posted Aug 2, 2004 20:48 UTC (Mon) by adulau (guest, #1131) [Link] (6 responses)

The OSRM approach is the wrong approach. The kernel code is protected by the author rights and copyrights, software patents *are* incompatible with the author rights. Managing Royalty-Free licenses for the patents with free software licenses is a real pain and impossible to maintain (due that you must handle 3 interactions : the free software license, the patent and the non revocable royalty-free license). I don't know the objective of the OSRM but It seems that they forgot something : legal complexity (or the wretched legal blob) doesn't help free software. A free software must care about authors rights but not with software patents. This is unrelated.

http://philsalin.com/patents.html

Linux Scare Tactics (Forbes)

Posted Aug 2, 2004 21:02 UTC (Mon) by BrucePerens (guest, #2510) [Link] (5 responses)

So, tell me what you plan to do if you are a developer and you go to court? You can tell the judge software patents *are* incompatible with the author rights, which will not go too far. You can attempt to license the patent and be in conflict with the GPL (and despite what Dan Ravicher says, we will not be seeing many patents licensed for everyone's free use in GPL software, which is what the GPL would require). You can defend against the patent. OSRM would defend against the patent.

I am at real risk of being sued as are many individual developers. I would be able to afford a few days in court, and would then have to sign a settlement no matter how pernicious the terms. Those terms would probably make me sign over my copyrights and agree not to develop Open Source code any longer.

Thanks

Bruce

Linux Scare Tactics (Forbes)

Posted Aug 3, 2004 1:37 UTC (Tue) by hs1 (guest, #23692) [Link] (2 responses)

brief question: afaik, patents still require to "significantly advance the state of the art", at least in theory. if you don't know about the patent, and come up with a patent violation when confronted with a similar problem, doesn't that already invalidate the patent?

No.

Posted Aug 3, 2004 3:24 UTC (Tue) by dwheeler (guest, #1216) [Link] (1 responses)

No. For patents, whoever registers first owns the idea. If you independently came up with it, it doesn't matter. And the patent office isn't really qualified to do this research, which makes the situation much worse. For LZW (the basis of GIF), the patent office actually gave the same patent twice to two different companies (IBM and Unisys)! In theory, if it's publicly known it can't be patented later by someone else, but court costs make that only theoretical. Because the costs are so large, only companies can practically participate in a patent court; even if you're right, you'll lose (and create a court decision making future losses more likely), because individuals cannot afford the fees to make it through a patent court case.

No.

Posted Aug 4, 2004 15:38 UTC (Wed) by raytd (guest, #4823) [Link]

No. For patents, whoever registers first owns the idea. (bold emphasis added)

May I ask what leads you to believe ideas are patentable? I have been taught that it is the implementation of an idea that is patentable. Not the idea itself.

Linux Scare Tactics (Forbes)

Posted Aug 3, 2004 14:35 UTC (Tue) by adulau (guest, #1131) [Link] (1 responses)

IMHO

The situation is getting worse if you acknowledge the existing patent. A simple example, a lot of patents are similar or related or cross-referenced. If you gain a non-revocable RF-License (for GPL only) from a "friendly" patenter, everything looks ok (a part the complexity layer this is not good but it's another story). Now, an unfriendly patent holder said his patent is similar to the patent where you have the RF-license. He starts a procedure against the patent holder to devalidate the friendly patent. The judge said that the unfriendly patent is valid and the other one is devalidated due to the anteriority. Now, you have publicly announced a RF-license for the friendly patent, the unfriendly patent holder can easily ask for more money due to the "ack" of the patent... The patent system is cleary flawed. Working with the patent system is more dangerous than not working with it.

Linux Scare Tactics (Forbes)

Posted Aug 3, 2004 18:31 UTC (Tue) by mmarsh (subscriber, #17029) [Link]

Not working with the patent system just isn't a real option for anyone in the USA. The system's there, and ignoring it doesn't protect you from it. What OSRM is doing is saying, "There appears to be a real risk of patent lawsuits against Linux users/developers. Your pockets might not be deep enough to defend yourself in court, but if you buy our insurance, we'll be able to defend you, and all of our other policyholders." If a patent gets smacked down in court from one case, everyone else is protected against further litigation using that patent.

We're talking about insurance here, which is all about risk management. If you're convinced that you'll never be sued over an alleged patent infringement, then don't buy a policy. If you have a stable of lawyers who can defend you and possibly launch a counter-attack, then don't buy a policy. If you want to pool your financial resources with others, you can either support the EFF and hope they defend you, or you can buy a policy and *know* that OSRM will defend you.

The triple damages aspect is somewhat unfortunate. Ideally, we'd have a group of lawyers and programmers looking at all of the patents and figuring out which ones are vulnerable. Since those programmers can no longer develop software without worrying about taint, I doubt we'd find many takers. Perhaps someone who is retired or has moved on to something aside from programming might volunteer, if any such qualified person exists. The next best thing might be a database of all the neat hacks people can remember, ideally with names, dates, and corroborating evidence, that the lawyers can then search through for prior art. That would be taint-free, but likely also a serious pain.

GNU Patent License and Patent Parties

Posted Aug 2, 2004 21:16 UTC (Mon) by smoogen (subscriber, #97) [Link] (1 responses)

Its time that we had a GNU patent license (and a Lesser GNU patent license), a crack team of patent lawyers+staff, and a bunch of patent parties. Everyone comes up with ideas, we pay the lawyers+staff to do the proper research/filing, and then they are all turned over to a Free Software Organization for their use. Then we start using the patents to make people free/open software their code because they have to!

Its just hacking the system (in the oldest sense of the word) to get it to do what you want.

GNU Patent License and Patent Parties

Posted Aug 2, 2004 22:23 UTC (Mon) by lakeland (guest, #1157) [Link]

A couple problems with your idea:

1) The problem as I see it is frivolous patents from largely shell
companies. Say SCO had a patent they were suing 'linux' over. How could
'linux' counter-sue sco over a patent? SCO doesn't write any code anymore.
Real companies rarely, if ever, sue over patent infringement.

2) Filing patents costs _lots_. I'm convinced that money would be better
spent elsewhere.

Linux Scare Tactics (Forbes)

Posted Aug 2, 2004 21:31 UTC (Mon) by iabervon (subscriber, #722) [Link]

Any idea what the paper is actually supposed to say? Neither xpdf nor gv could make sense of the paper linked from the OSRM site. I'd expect the paper to say that Linux is justified in doing everything it does, and fit the general pattern of "it's legally fine to use Linux, but may cost a lot to prove that", which is where insurance would make sense.

Classic Lyons (the blonde leading the blonde)

Posted Aug 3, 2004 3:01 UTC (Tue) by leonbrooks (guest, #1494) [Link] (1 responses)

He quotes (drum-roll...) a Rob Enderle statement as supporting evidence for his claims! <whacks forehead>

If it wasn't for his background-digging about OSRM's lead lawyer, which does look genuinely shonky from what he's written, I'd add the article to the little roll in the smallest room in the house. However, quite aside from his usual track record for accuracy (which can be summarised as "in"), his portrayal of Pamela Jones is kind of... emotive and short on facts. If he's just finished slagging her down without foundation, how correct are his other facts likely to be?

Classic Lyons (the blonde leading the blonde)

Posted Aug 4, 2004 15:18 UTC (Wed) by Oddly_Drac (guest, #23754) [Link]

> how correct are his other facts likely to be?

The question is whether they can be considered libellous or not.

First patent lawsuit against Linux won't come from MSFT

Posted Aug 3, 2004 16:55 UTC (Tue) by JoeBuck (subscriber, #2330) [Link]

I predict that the first patent lawsuit against Linux won't come from Microsoft. It probably will not be in Microsoft's interest to fire the first shot in a patent war. The reason is that Microsoft is vulnerable to counterattack, particularly from IBM. I suspect that IBM is the largest holder of patents in the secret list of 283, that Windows also "infringes" most of those patents, and that Microsoft doesn't have a cross-licensing deal in place that covers all of them. A patent attorney I know has likened patents in the software industry to nuclear weapons; if everyone starts using them offensively, it's mutual assured destruction for many of the participants, but everyone has been growing their portfolio for the deterrent effect.

The free software world might also be partially protected by the fact that it can't agree to pay even a tiny royalty for use of a patent; it's either free or not. That defeats the common strategy of people who hold questionable patents: file a complaint about infringement, and offer settlement terms that are just slightly cheaper than prolonged litigation would be. That is, ask lots of people to pay you a little bit of money to go away. The only options, once a legal action is started, are for the developers to back down (withdraw the product) or to fight, and fights can be expensive for both sides. The people with deep pockets have software patents of their own (particularly IBM, and to a lesser extent Novell). Even Red Hat has taken out a couple of patents, though their patent portfolio is probably pretty weak.

The real danger, I would think, is from any patent owners that are no longer in the software business, or who decide to drop out in favor of the patent litigation business. These kinds of folks might well decide that there's only an upside to going after everyone involved in any way with Linux, if they can.