Sun has betrayed us all

By caving in to Kodak, Sun has set the scene for the end of free innovation in IT
Written by Leader , Contributor
If you're a software developer, your world is about to become a colder place – thanks to Sun. If you use software, get ready to pay much more for much less – thanks to Sun. If you had hopes that free and open source software would provide competition for proprietary systems, forget them – thanks to Sun.

We owe this huge debt of thanks to that company because it has caved in to Kodak. Instead of fighting the patent claims that Kodak raised over Java, Sun has settled out of court. We don't know the details – delightfully, such settlements often remain secret no matter what their public interest – but it undoubtedly includes a cross-licensing deal. In short, Sun has given Kodak millions of dollars to go away and the companies will have agreed not to sue each other in future over mutual use of their IP.

Although Sun has bravely said that this settlement is no admittance of guilt, it's handed over the Danegeld. Kodak is already crowing that its patents have been validated in court. Armed with this, it is free to go after anyone – and those patents can be argued to cover just about every aspect of modern software practice. They may even cover processors. That's just three patents out of the tens of thousands which are sprinkled around the industry. Which one will you infringe today?

Anyone who makes software is now at risk. Big companies will solve the problem cheaply by doing Sun-like cross-licensing deals – it'll cost less and be far less risky. Shareholder value demands it. Microsoft knows this. It has been assiduous at setting these up with many companies over the last year or so, and it already has an agreement with Kodak. In no time, there'll be a legal web over the industry, with everyone paying everyone else for the rights to use their respective IP. Nothing will escape: someone will already have patented 1+1=2, and can you afford to fight it?

That's fine if you're a big company and can afford to join the club. What if you're not? Then you either pay up your licence fees or you don't write software. Be sure that the big boys will set up a helpful organisation to issue cross-patent licences, so you only have to go to one place with your cheque, and be sure that the licence you get will be quite clear about what you can and cannot do with your software. After all, the rights of the intellectual property holders have to be maintained. That's the only way to encourage innovation – to give total control of invention to large companies.

As for free and open source software? We already know what Sun, Microsoft and friends think of that, so we can guess how happy they'll be – once they're in a position of control – to let it carry on.

There is only one way to avoid what has been described as a nuclear winter for the IT industry, and that is to call a halt to software patents now. Stop them. Repeal them all. They only exist through case law, the weakest sort of legislation imaginable. By all means, let's discuss how to protect IP in the age of the Internet and universal computing – it does need protecting. But the IP of the individual needs protecting from the interests of the powerful just as much as the interests of the powerful need protecting from the likes of us.

Luckily we don't currently suffer the same software patent mess in Europe, but this could soon change as the European Software Patents Directive makes its way back to the Parliament. This legislation is approaching a critical stage. Talk to your MP and your MEP about it now, or check out the Foundation for a Free Information Infrastructure for more information.

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