[discuss] Other shoe on Microsoft patent deal drops.

[Russell McOrmond]

For clarity: I'm writing this not as the policy coordinator for CLUE but 
as a concerned member of the FLOSS community.  It may be safe to say that 
CLUE and our members are opposed to software patents, but I don't think 
there is anything specific on this more recent issue that can be said on 
behalf of our larger community.




Ballmer Invites Patent Talks with Competing Linux Vendors
http://www.eweek.com/article2/0,1895,2050848,00.asp?kc=EWEWEMNL103006EP17A

     The distributors of other versions of Linux cannot assure their
     customers that Microsoft won't sue for patent infringement. "If a
     customer says, 'Look, do we have liability for the use of your
     patented work?' Essentially, If you're using non-SUSE Linux, then I'd
     say the answer is yes," Ballmer said.


   Microsoft doesn't have to actually sue anyone for this to be a 
threat, just like SCO didn't actually have to disclose any infringing 
copyright code in order to be seen as a threat.


   Please also remember that the promise not to sue hobbyist doesn't mean 
anything, given that no hobbyist has ever been successfully sued for 
patent infringement.  In fact, many countries already carve-out hobbyist 
from patent law.

http://laws.justice.gc.ca/en/P-4/257702.html#Section-55.2
     (6) For greater certainty, subsection (1) does not affect any
     exception to the exclusive property or privilege granted by a patent
     that exists at law in respect of acts done privately and on a
     non-commercial scale or for a non-commercial purpose or in respect of
     any use, manufacture, construction or sale of the patented invention
     solely for the purpose of experiments that relate to the
     subject-matter of the patent.


   IANAL, but I have read that this subsection is often interpreted as 
suggesting that any private or non-commercial use of a patent is not an 
infringement.  I wish the patent act were more explicit in this area, but 
this lack of clarity is one of the problems with a lot of technology law.



   This push to legitimize software patents within FLOSS distributors is 
going after the very fundamentals of the FLOSS ecosystem by attacking 
those who are making money from FLOSS.  While I would love to see actual 
credible statistics on this, by far the majority of contributors to FLOSS 
are paid to do so and thus would not be able to do so when software 
patents are used to stop their participation.


   I still believe the only viable response to this is to only support 
FLOSS vendors who:

   a) do as RedHat has, which is to publicly state their opposition to 
software patents, but to build a patent portfolio to use defensively. 
This includes their statement that they will not sue anyone distributing 
under FLOSS licenses (and they list specific examples)
   http://www.redhat.com/legal/patent_policy.html

   b) are willing to defend themselves against patent litigation by putting 
in the effort to invalidate patents that are explicitly alleged to be 
infringed.  We need to drag the alleged patents out into the open. Many 
estimates are that between 60 to 95% of software patents currently granted 
by the USPTO are of bad quality and would not survive a court challenge.


-- 
  Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
  Please help us tell the Canadian Parliament to protect our property
  rights as owners of Information Technology. Sign the petition!
  http://www.digital-copyright.ca/petition/ict/

  "The government, lobbied by legacy copyright holders and hardware
   manufacturers, can pry my camcorder, computer, home theatre, or
   portable media player from my cold dead hands!"