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[OT] Open Source Licenses against Software Patents

Pit Capitain

1/20/2005 10:25:00 AM

Applying for a new RubyForge project is harder than I thought :-), cause I have
to choose a suitable license. I'd like to have a very liberal and easily
understandable one like the MIT license [1] for example. But I also want to
explicitly exclude companies holding software patents from this license. Do you
know of any licenses with similar goals?

Regards,
Pit

[1] http://www.opensource.org/licenses/mit-li...
25 Answers

Tim Hunter

1/20/2005 1:01:00 PM

0

Pit Capitain wrote:

> Applying for a new RubyForge project is harder than I thought :-), cause I
> have to choose a suitable license. I'd like to have a very liberal and
> easily understandable one like the MIT license [1] for example. But I also
> want to explicitly exclude companies holding software patents from this
> license. Do you know of any licenses with similar goals?
>
> Regards,
> Pit
>
> [1] http://www.opensource.org/licenses/mit-li...

Nothing exactly like that. Several licenses have patent defense clauses,
though. These clauses terminate the license if the licensee initiates a
patent infringement claim. You might check out the Academic Free License
(http://www.opensource.org/licenses/a...). This is a BSD-style
license. Section 10 says

"Termination for Patent Action. This License shall terminate automatically
and You may no longer exercise any of the rights granted to You by this
License as of the date You commence an action, including a cross-claim or
counterclaim, against Licensor or any licensee alleging that the Original
Work infringes a patent. This termination provision shall not apply for an
action alleging patent infringement by combinations of the Original Work
with other software or hardware."


Lawrence Rosen wrote the AFL. His book _Open Source Licensing_ is a very
good resource if you're serious about this topic.

Thursday

1/20/2005 2:05:00 PM

0

Pit Capitain wrote:
> Applying for a new RubyForge project is harder than I thought :-), cause
> I have to choose a suitable license. I'd like to have a very liberal and
> easily understandable one like the MIT license [1] for example. But I
> also want to explicitly exclude companies holding software patents from
> this license. Do you know of any licenses with similar goals?
>
> Regards,
> Pit
>
> [1] http://www.opensource.org/licenses/mit-li...
>
>

Software patents have both positive and negative aspects. Anyone simply
preaching that it is all bad or all good are merely displaying their
ignorance.

I don't think many people look at the pros and cons of software patents.
I think many just ride the bandwagon after listening to just one side
of the argument (mindless sheep).

If software patents didn't exist, many fundamental software inventions
would not be available to the public because companies or inventors that
created them would be keeping them as TRADE SECRETS.

Companies merely HOLDING software patents can be any one of the
following (and IMHO, they shouldn't be treated equally):

1. companies that hold "defensive" software patents because they filed
it in order to be able to prove they invented it first--just in case
another company sues them in the future. Or they may have acquired them
by purchasing another software company which already owned some and have
no plans to enforce them against others (but hold on to them because
they represent value and a possible defense against attacking companies).

2. companies that actively enforce their patents to protect products
they actually produce & sell (ie, a small startup that was afraid a
Microsoft or other huge company can simply copy-cat their groundbreaking
new product and crush them before they can even recover their
life-savings they invested during development)

3. companies that don't produce anything except patents for the sole
purpose of generating revenues exclusively from licensing. some people
view this as a form of legalized extortion and i'm not sure i disagree
with that opinion (this is what harms innovation).

Keep in mind that software patents are granted ONLY if the patent
application provides SUFFICIENT DETAIL for an average person skilled in
computer science to successfully create the described invention WITHOUT
UNDUE EXPERIMENTATION. This is in addition to being non-obvious and
novel (no prior art).

This means: 'give the general public a full description of your
invention, and in exchange we [govt] will grant you a limited-time
monopoly of about 15 years, after which everyone on the planet can
copy/make/use your invention without your permission, thereby
encouraging inventors to not only spend resources to invent but also to
share with the public'. If we find prior art, then your patent will
become unenforceable. And if people find ways to work-around your
patent claims, then tough luck because you cannot stop them from making
your invention.

If software patents are banished, something should be offered in its
place which would:

1. encourage inventors to spend the upfront time & money to invent
non-trivial software

2. to fully describe their new inventions to the general public in
sufficient detail for others to successfully create the invention

Thursday

1/20/2005 2:14:00 PM

0

Thursday wrote:
> If software patents are banished, something should be offered in its
> place which would:
>
> 1. encourage inventors to spend the upfront time & money to invent
> non-trivial software
>
> 2. to fully describe their new inventions to the general public in
> sufficient detail for others to successfully create the invention

And perhaps most importantly:

3. help protect small companies and startups from being raped by
established companies who copycat their novel & non-obvious inventions
and crush them with superior marketing & brand-name recognition

Francis Hwang

1/20/2005 2:18:00 PM

0


On Jan 20, 2005, at 9:06 AM, Thursday wrote:

> Pit Capitain wrote:
>> Applying for a new RubyForge project is harder than I thought :-),
>> cause I have to choose a suitable license. I'd like to have a very
>> liberal and easily understandable one like the MIT license [1] for
>> example. But I also want to explicitly exclude companies holding
>> software patents from this license. Do you know of any licenses with
>> similar goals?
>> Regards,
>> Pit
>> [1] http://www.opensource.org/licenses/mit-li...
>
> Software patents have both positive and negative aspects. Anyone
> simply preaching that it is all bad or all good are merely displaying
> their ignorance.
>

He wasn't preaching, he was simply stating a preference as to who else
could use the code that he's releasing to the world for free. When
_you_ release code to the world for free, you can set your own terms,
though the tone of your post makes me guess that you're the sort of
person who'd rather snipe from the sidelines than roll up his sleeves
and get to work.

Francis Hwang
http://f...

Sam Roberts

1/20/2005 2:28:00 PM

0

Quoteing pit@capitain.de, on Thu, Jan 20, 2005 at 07:25:19PM +0900:
> Applying for a new RubyForge project is harder than I thought :-), cause I
> have to choose a suitable license. I'd like to have a very liberal and
> easily understandable one like the MIT license [1] for example. But I also
> want to explicitly exclude companies holding software patents from this
> license. Do you know of any licenses with similar goals?

That might be most of the companies in the world with more than a dozen
people!

The GPL has some clauses effecting patents - if I recall correctly, if
you take GPL code and use it in an app, you have to licence all the
patents in that app to anybody who wants them. Don't know if thats
exactly what you want, though.

Cheers,
Sam

Stephen Kellett

1/20/2005 6:11:00 PM

0

In message <J0PHd.19856$by5.515@newssvr19.news.prodigy.com>, Thursday
<nospam@nospam.nospam.nospam.nospam.org> writes
>3. help protect small companies and startups from being raped by
>established companies who copycat their novel & non-obvious inventions
>and crush them with superior marketing & brand-name recognition

The main problem with software patents is that it is the large companies
that use them to stop small companies, not the other way around.

Patents were invented when the progress of technology was slow. Think
static steam engines. In 25 years the change was quite slow. In the
world of software, software patents should have a maximum lifetime of
about 2 years.

Stephen
--
Stephen Kellett
Object Media Limited http://www.objmedia.d...
RSI Information: http://www.objmedia.d.../rsi.html

Ben Giddings

1/20/2005 6:46:00 PM

0

Stephen Kellett wrote:
> The main problem with software patents is that it is the large companies
> that use them to stop small companies, not the other way around.
>
> Patents were invented when the progress of technology was slow. Think
> static steam engines. In 25 years the change was quite slow. In the
> world of software, software patents should have a maximum lifetime of
> about 2 years.

It's not just the lifetime that's the problem, it's the "obviousness" of
the discovery. It is really hard for an individual or a small company
to successfully file a patent these days, but big corporations can just
churn them out.

I recently tried out uControl, software for OS X that gives you more
control over the keyboard, etc. The author had a feature in there where
you could type one-handed by using the spacebar to chord / toggle keys.
Unfortunately, he had to disable that feature in recent versions
because of patent issues.

Many of us would think that something like that would be far too obvious
to patent. In fact, it *should* be possible to successfully challenge
the patent... unfortunately the odds of an individual or small business
successfully defeating a patent like this are too low to make it worth
the time and expense.

This is especially a pain for open source projects where nobody is
trying to make any money, they're just trying to spread the goodness.
If you were making money off the software, fighting dumb patents would
just be a cost of doing business, but if you're doing it all for free,
what can you do?

Ben

Glenn Parker

1/20/2005 6:55:00 PM

0

Thursday wrote:
>
> I don't think many people look at the pros and cons of software patents.

I've personally spent a while thinking about pros and cons, and I left a
job at a medium-sized company partly because the powers that be insisted
that I participate in the filing of a patent that I considered to be
utterly bogus. The company used a typical "strategic warchest" defense
to justify this strategy, but I don't believe they had any interest in
filing quality patents. It was very much about quantity, and forget
about quality.

Some companies, such as IBM, have much more stringent review boards, and
they actually have fairly sane policies regarding patents (witness their
patent licensing for free software projects). Unfortunately, IBM is the
exception, not the rule.

> If software patents didn't exist, many fundamental software inventions
> would not be available to the public because companies or inventors that
> created them would be keeping them as TRADE SECRETS.

I must challenge you to back up that assertion somehow. Software was
not patentable for decades after the invention of the computer, but that
did nothing to slow down progress in computer science, nor did it result
in a situation where only high-powered companies had access to powerful
algorithms.

If software was not patentable, companies would have trade secrets
(which they still have, today, anyway), but other companies would be
free to "re-invent" algorithms without fear of retribution just for
using their own well-educated noggins.

There's no real value in algorithms, any more than there is intrinsic
value to "E=mc^2" (and what if that had been patented?). The value is
derived from the implementation and the service and all the other real
work involved in selling and supporting software. Software patents are
an artificial, and therefore fragile, attempt to assign value to
mathematical thinking.

--
Glenn Parker | glenn.parker-AT-comcast.net | <http://www.tetrafoi...

Esteban Manchado Velázquez

1/20/2005 10:22:00 PM

0

Hi Thursday,

On Thu, Jan 20, 2005 at 11:06:01PM +0900, Thursday wrote:
> [...]
> Software patents have both positive and negative aspects. Anyone simply
> preaching that it is all bad or all good are merely displaying their
> ignorance.
>
> I don't think many people look at the pros and cons of software patents.
> I think many just ride the bandwagon after listening to just one side
> of the argument (mindless sheep).

Sorry, simply not true.

> [...]
> Keep in mind that software patents are granted ONLY if the patent
> application provides SUFFICIENT DETAIL for an average person skilled in
> computer science to successfully create the described invention WITHOUT
> UNDUE EXPERIMENTATION. This is in addition to being non-obvious and
> novel (no prior art).

Theoretically yes. But please do a little research and see _lots_ of
absolutely obvious patents (the e-shop by FFII is particularly entertaining:
http://webshop...). I'm not saying that _necessarily_ most/all patents
are obvious, but obvious ones usually (can) do a lot of harm. And I don't see
non-obvious (I'm not even sure I've seen any of those) being
innovation-fostering.

And sorry, but I find it hilarious that without patents there won't be
innovation. Do you see companies _not_ innovating or developing new things
because they can't "protect" their "inventions"? Small bussinesses don't even
have money to file/defend patents... :-)

Sorry for the Off-Topic, but specially being European, I had to state that
people opposing patents aren't particularly mindless :-)

--
Esteban Manchado Velázquez <zoso@foton.es> - http://ww...
EuropeSwPatentFree - http://EuropeSwPatentFree.his...

Dido Sevilla

1/21/2005 4:49:00 AM

0

On Thu, 20 Jan 2005 19:25:19 +0900, Pit Capitain <pit@capitain.de> wrote:
> Applying for a new RubyForge project is harder than I thought :-), cause I have
> to choose a suitable license. I'd like to have a very liberal and easily
> understandable one like the MIT license [1] for example. But I also want to
> explicitly exclude companies holding software patents from this license. Do you
> know of any licenses with similar goals?

This makes any such prospective license discriminatory, and hence not
a valid Free Software or Open Source license. If your goal is to
prevent a patent holder from getting to you, licenses with a mutual
termination clause such as the MPL or the upcoming GPLv.3 (so I hear)
will serve. But what you seem to want is in violation of the essence
of what makes a license a Free/Open Source license in the first place.