Ramblings & ephemera

Open source & patents

From Liz Laffan’s “GPLv2 vs GPLv3: The two seminal open source licenses, their roots, consequences and repercussions” (VisionMobile: September 2007):

Cumulatively patents have been doubling practically every year since 1990. Patents are now probably the most contentious issue in software-related intellectual property rights.

However we should also be aware that software written from scratch is as likely to infringe patents as FOSS covered software – due mainly to the increasing proliferation of patents in all software technologies. Consequently the risk of patent infringement is largely comparable whether one chooses to write one’s own software or use software covered by the GPLv2; one will most likely have to self-indemnify against a potential patent infringement claim in both cases.

The F.U.D. (fear, uncertainty and doubt) that surrounds patents in FOSS has been further heightened by two announcements, both instigated by Microsoft. Firstly in November 2006 Microsoft and Novell1 entered into a cross- licensing patent agreement where Microsoft gave Novell assurances that it would not sue the company or its customers if they were to be found infringing Microsoft patents in the Novell Linux distribution. Secondly in May 2007 Microsoft2 restated (having alluded to the same in 2004) that FOSS violates 235 Microsoft patents. Unfortunately, the Redmond giant did not state which patents in particular were being infringed and nor have they initiated any actions against a user or distributor of Linux.

The FOSS community have reacted to these actions by co-opting the patent system and setting up the Patent Commons (http://www.patentcommons.org). This initiative, managed by the Linux Foundation, coordinates and manages a patent commons reference library, documenting information about patent- related pledges in support of Linux and FOSS that are provided by large software companies. Moreover, software giants such as IBM and Nokia have committed not to assert patents against the Linux kernel and other FOSS projects. In addition, the FSF have strengthened the patent clause of GPLv3…

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