Has FOSS lost the battle against patents

Has FOSS lost the battle against patents

Summary: Software patents are a fact of life. Their abolition isn't achievable, writes the author of the FOSSPatents blog.

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TOPICS: Legal, Open Source
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"Software patents are a fact of life. Their abolition isn't achievable."

The author of these words is not Larry Ellison, not Steve Jobs. It's Florian Mueller (right), and he wrote it on his FOSSPatents blog last week, shortly after I met with him in Munich.

Mueller is a passionate, knowledgeable, and fast-talking advocate, best known here for fighting the Sun-Oracle merger over the issue of mySQL. "FOSS must find ways to deal with patents, and in fact, it already has," he adds.

Curiously, when we met for dinner near Munich's Marienplatz, we were carrying the same phone, a Samsung Galaxy Si9000. (I took the picture at right with mine. Not bad for being in a dark alley.)

NOTE: Florian writes the photo was taken in the restaurant, not outside. My apologies. My memory was working from the section of the photo I used, not the whole photo.

He offers this as an example of his point. Samsung pays royalties for the Intellectual Property (IP) rights on its phones, including its Androids.

This isn't just true for Linux, but for Java as well, he writes. Oracle provides Java under the GPL, but its patent grant is among the most restrictive in the industry.

The context he was writing in is important.

As David Meyer of ZDNet UK writes, the Free Software Foundation Europe and the Business Software Association are engaged in a pitched battle over open standards, as a new European Interoperability Framework (EIF) is developed. Mueller's point was that fair, reasonable and non-discriminatory (FRAND) patent licenses offer a way out, a way for business to go forward.

Mueller says the reason the GPLv2 remains the standard open source contract is because of the GPLv3's stand against software patents. He goes back to the new license's birth, which came alongside the Microsoft-Novell agreement acknowledging Microsoft rights over Linux, and he quotes Richard Stallman on how the GPLv3 would forbid such deals.

"GPLv3 ultimately became very restrictive, but as a result, it's a big-time failure. No major open source project (such as Linux) has embraced it." Whatever your opinion it's hard to argue with his facts.

In terms of the EIF, which is the point at issue, Mueller wants a compromise. "I'm pro-FOSS and against the patentability of software, but I also know that FRAND is a good concept in principle," he writes today.

So if the war over patents is over and patents won, what now for open source?

Topics: Legal, Open Source

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32 comments
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  • Foss will win the war

    because it will bankrupt M$, Apple and other patent goons.
    The software insurgency always wins because the dinosaurs can not adapt to the new threats regardless of their pile of ca$h.
    Linux Geek
    • You do realize that those piles of cash

      Come from people buying their products. In other words, pile of cash is the scoreboard in the game.
      frgough
      • Were it not pile of cash ...

        from Shuttleworth providing life support to a Detroit like Ubuntun, we wouldn't even heard about it. But rest assured not even Shuttleworth's money is enough to cover that perennial blackhole.
        LBiege
    • Is that why Linux has 1%

      And Microsoft has 90%+?

      FOSS has lost, get over it.
      Michael Alan Goff
    • RE: Has FOSS lost the battle against patents

      @Linux Geek

      A bird in the hand is worth two in the bush.

      How many years has your wishful thinking sustained you?
      mikefarinha
  • Borderline

    What the... Muller is a lobbyist! This guy is paid to present a BSA pro-patent position (FRAND), paid to bully the EIFv2 defenders, the FSF, community members like Karsten Gerloff, Richard Stallman and Eben Moglen. His compromise looks exactly the same like what patent lobbyists do not get from the E.U. He has no community, no credibility and does not represent anyone except his astroturfs. U.S. software corporations want the E.U. to ignore their self-interests. In Muller's world interoperability would stay all the same and Microsoft would milk the European public sector another 10 years, cash in on software patents and lock-in, stifle interoperability...
    Multiplatt
    • RE: Has FOSS lost the battle against patents

      Indeed. Please don't take anything Florian Mueller says as being on behalf of the Free Software/Open Source community. He is now a pro-software patent lobbyist, whatever he once was.

      His modus operandi is to pretend to be a FLOSS supporter, asking for "compromise" with patent holders. His "compromise" is complete capitulation of course. He habitually trolls FLOSS web sites asking for his "compromise", and is the sort of person who believes that by writing more posts than his opponents he can win the argument. All good signs of someone who is paid to do such things, as most FLOSS coders have more important things to be doing (writing more Free Software :-).

      Please don't give this person any more publicity, he's quite capable of paying for it himself from the funds he gets from his "clients".

      Jeremy Allison,
      Samba Team.
      JeremyAllison
      • RE: Has FOSS lost the battle against patents

        @JeremyAllison You are making a serious charge, but if you have proof of it then I would like to see it.

        All this relates, of course, to my previous piece on open source hurting its own cause by having its advocates throwing charges of "corporate tool" about.
        DanaBlankenhorn
      • Do you not work for Google, a company with patents

        of their own that they do not wish to share, Mr. Allison?

        And those patents are there for a reason, are they not?
        Tim Cook
    • RE: Has FOSS lost the battle against patents

      @Multiplatt I won't respond to baseless rants, but concerning interoperability and lock-in, FRAND can provide interoperability and thus prevent a lock-in.
      FlorianMueller
  • RE: Has FOSS lost the battle against patents

    @JeremyAllison In addition to "Samba Team", you should have mentioned you work for Google, which is a pro-software-patent company. Concerning "capitulation", I want to point out that my position is this: the open standards camp should accept FOSS-compatible FRAND and that (at the same time) patent holders should define their FRAND terms in a FOSS-compatible way. That means to meet each other half way. It doesn't imply surrender. Has Google ever done anything to seriously get software patents abolished? The answer is No. That's the same as with Apple, Microsoft, IBM, etc. Admittedly, some of those have done more *for* software patents. The bottom line is that as long as industry unanimously supports them, constructive solutions must be found and extreme positions are strategically lost.
    FlorianMueller
  • Samba Team actually fought for a FRAND license

    @JeremyAllison I almost forgot to mention that you, the Samba Team, actually fought for a FRAND license. You did so for years, alongside FSFE and others. You got it: the European Commission ruled, and the EU's Court of First Instance confirmed, that Microsoft had to grant a FRAND license to whatever IP would be needed for your purposes. You didn't get the EU to rule (because it wouldn't work under the law) that a royalty-free/restriction-free license was the only way. Just FRAND. Quite hypocritical of you to now criticize me for advocating FOSS-compatible FRAND...
    FlorianMueller
    • RE: Has FOSS lost the battle against patents

      I will only reply once here, as I'm quite busy fixing bugs at the moment.

      1). Yes, I work for Google. I respectfully disagree with you that Google is a pro-software patent company. As I often publish articles here on ZDnet with my company affiliation in the title, I presumed that readers here would know I was a Google employee. For that I apologize. I have always been clear about who pays my wages. Who are your funding clients by the way ? I've never seen you answer that question, and I've asked it many times.

      Your attempt to paint me as a software patent supporter rings a little hollow based on my copious writings on this subject. I feel I have much more credibility than you on this matter, but as always, readers may judge for themselves.

      2). The Samba Team fought hard for ROYALTY-FREE licensing. We didn't get it, but to say we fought for a FRAND license is disingenuous at best. We have always been clear that patented, royalty bearing licensing is completely incompatible with Free Software.

      Now I'll leave the field to those who appear to have lots of paid time to use it :-).

      Jeremy.
      JeremyAllison
      • RE: Has FOSS lost the battle against patents

        @JeremyAllison Concerning 1) I analyzed Google's Bilski brief on my blog:
        http://fosspatents.blogspot.com/2010/08/googles-bilski-brief-didnt-advocate.html
        It supported Google-style (even if not Bilski-style) software patents.

        The other question was addressed by me before on LWN some other time.

        Finally, I never said you personally support software patents. I just point out that you are on the payroll of a company that supports those patents and therefore you can't blame those who believe we all have to make the best out of the situation we face.

        On 2) you can't seriously believe that the legal system of any civilized country on this planet would give you a ROYALTY-FREE license as the outcome of an antitrust proceeding. That would be a downright expropriation, unconstitutional everywhere. You knew and there can be no doubt at all that your lawyers told you that the maximum a regulator can impose is FRAND. So if FRAND doesn't help FOSS, you should never have lodged a complaint. The Commission wasn't going to bend the law just to do your bidding.
        FlorianMueller
      • RE: Has FOSS lost the battle against patents

        @JeremyAllison I don't want to be rude here, just to understand. Since you are as you admit a Google employee, how are you less a corporate shill than you accuse others of being?

        This, again, is the point I was making before, that all sides are hurting the cause by pointing fingers and making accusations of "corporate shill," such that cooperation within the movement becomes impossible.

        Which may be what the corporate interests most want.
        DanaBlankenhorn
      • RE: Has FOSS lost the battle against patents

        @DanaBlankenhorn<br><br>Jeremy have always admitted who he works for. Also, Jeremy quit Novell after they sold out to Microsoft, so he have put money where his mouth is. Working for company (Google) which don't have policy against software patents is not working against software freedom. Google never supported software patents (if you think they did, please show me) and they never signed a deal to pay royalties for free software to anyone, like Novell did. <br><br>Florian Mueller on the other hand, have escaped the question more times than I care to count. He declined to comment on "yes" or "no" question, like "Are you paid by Microsoft?", more than 10 times. <br><br>Calling Jeremy a Google shill is not just rude, it is inaccurate. Shills avoid saying who pays them. Like Florian.
        gnufreex
      • RE: Has FOSS lost the battle against patents

        @DanaBlankenhorn

        Dana, I hope and expect that you are not seriously equating working for a company to "shilling" for them, that is, accepting their money in an explicit arrangement to push their PR talking points. Otherwise every employed person is a shill. You have said in a recent post that disclosure is the key here. Jeremy has disclosed his income source. Mueller has not, to my knowledge. If he has, please produce the reference (either you or Mueller).

        I have nothing against Florian Mueller, but I have great respect for Jeremy Allison, who has made enormous contributions to open source over the years. I have no reason to think, as Mueller seems to suggest, that he secretly supports software patents. The claim itself is ludicrous and IMO hurts the credibility of those who make it, or to put it another way, put up (the evidence), or shut up.

        The main point of Allison's statement is that Mueller advocates complete capitulation to software patents. That seems either mostly or entirely true, just going on his statements that you report in your story. Whether he is a shill (in the proper use of the word), I do not know, but the fact that he can find so much time to advocate in this way is suspicious, don't you think? This can all easily be put to rest though. Florian Mueller, please disclose all your funding sources for your advocacy work for the last five years, as Jeremy Allison has done. That way we can rule out the possibility of you being a shill, and just debate whether your proposal of completely accepting software patents is a good one.
        buzzl
  • There is something this article is overlooking.

    Which is: New, original, open-source code, WITHOUT patents. Software by the people, for the people. Something Jeremy Allison has done a lot of, and we owe him thanks.
    peter_erskine@...
    • RE: Has FOSS lost the battle against patents

      @peter_erskine@... Since Jeremy has produced large quantities (and undoubtedly also a high quality) of code, I can't imagine he's never infringed a patent. Inadvertently, of course, but pretty much unavoidably.
      FlorianMueller
  • RE: Has FOSS lost the battle against patents

    @peter_erksine : "Which is: New, original, open-source code, WITHOUT patents. Software by the people, for the people. Something Jeremy Allison has done a lot of, and we owe him thanks." - while I am against software patents in practice though not in principle, because of the overworked way the Patent Office works, you cannot thank Jeremy Allison for writing open-source code without patents--it cannot be done. Too many patents out there, and not even the patent lawyers know what they all mean. Allison is just winging it, as we are all when we write code. Get big enough, and I'm sure some patent holder will come after you for some infringement.
    Ray Lopez