[discuss] Novell and Microsoft deal: Some of the better discussion.

[Russell McOrmond]

I've posted more of my thinking on this issue on my personal BLOG.

When someone pays protection money, we all become more vulnerable.
http://www.digital-copyright.ca/node/2780

Note: I did suggest helping to build CLUE as one way that Canadians can 
try to help fight to protect FLOSS from software patents and threats of 
patent lawsuits discouraging the use of FLOSS.  While we have allies in 
many sectors of the economy on copyright policy, we don't yet have many 
on the software patent issue.


Dave Sullivan wrote:
> I'm still a bit lost on this... how does this affect other distros, ie.
> how would it allow Microsoft to sue other distros for patent
> infringement?

   Software patent holders are always able to sue users and distributors 
of FLOSS software for patents embedded in that software.  It isn't the 
ability to sue that has changed, but the credibility of the threat such 
that patent holders can attack FLOSS without actually having to go to 
the courts.  If a patent holder actually goes to court they run the very 
large risk of having their software patents invalidated, so software 
patents are far more valuable if they can credibly threaten people 
without ever going to court.


   There were many people who delayed FLOSS deployments because of the 
less credible threat that SCO advertised, but this time we have a type 
of threat that is backed up in many countries due to the legalization of 
software patents.  (Note: This includes Canada where CIPO unilaterally 
expanded patentability to software without either court of parliamentary 
intervention).



   The nature of software patents is that it is nearly impossible to 
author software of any complexity that doesn't infringe patents, and the 
author did not need to have learned anything from or even know of the 
existence of a software patent in order to implement a patented method. 
  This is theoretically impossible with high quality patents which are 
supposed to be useful, novel and unobvious (meaning unlikely someone 
else given the same problem would come up with, or already came up with, 
the same solution), but estimates are that between 60% and 95% of 
software patents currently granted by the USPTO are of poor quality and 
would not stand up to even a basic scrutiny of utility, novelty and 
unobviousness in a court.

   What this announcement changes is the perception of the existence and 
quality of the patents that Microsoft holds against some undisclosed 
part of SuSE Linux.  This means that Microsoft doesn't have to actually 
sue anyone, but now have Novell going around advertising the fact that 
they believe that Microsoft is credible in any patent lawsuit threat.


   Software patents and FLOSS are fundamentally incompatible with each 
other.  You can render a patent harmless by invalidating it in court or 
having the patent holder offer a RF (Royalty-Free with no field of use 
restriction) license.  Other than as a "if you sue me, I'll sue you 
back" patents cannot provide any positive value for FLOSS developers (or 
most non-FLOSS developers either), but have always been a drag on 
innovation in software.

-- 
  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!"