[discuss] Other shoe on Microsoft patent deal drops.
russell at flora.ca
Fri Nov 3 14:08:47 EST 2006
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
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.
(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)
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/>
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