Re: <nettime> A 'licensing fee' for GNU/Linux?

[Felix Stalder <felix@openflows.org>]

> Felix, sorry if I sound rude, but this is not true, and you
> unintentionally spread FUD here!
>
> Proprietary licensing does _not_ protect customers from patent ligitation,
> unless the license contract explicitly states so. Software patents can be
> and have been enforced against users/licensees of proprietary software,
> too. Unisys' enforcement of the LZW/GIF patent, with its legal action
> against websites that used GIF images in 1999 (see
> <http://lpf.ai.mit.edu/Patents/Gif/Gif.html>) is a prominent example.

Well, actually, the story of the GIF patent controversy is exactly the
other way around and fits perfectly into my argument about differences
between proprietary and FOSS in terms of risk exposure in the coming
patent mess.

Yes, Unisys did sue some people over their use of .gif files on their
webpages. But the details are important here. As Mark Starr, General
Patent and Technology Counsel for Unisys at the time, explained it to
Slashdot "if the GIFs on your Web site were created with software that is
licensed by Unisys, you are fine. Nobody at Unisys is going to try to get
$5000 or even $0.50 out of you. Period." [1]

As he continued to explain, all of the major proprietary packages (Adobe,
Corel etc) had licensed the patented technology and hence users where
entitled make as many .gif images as they wanted for whatever purpose.
What they were after were people who used programs that had not licensed
the patents, which were mainly freeware (though sometimes this freeware
was distributed as part of commercial software) and FOSS programs (though
they played a minor role back then in the field of graphic design).

> The suspension of Munich Linux project, which was made toalarm the
> public about future risks for free software through software patenting
> in the EU, was therefore dangerously dumb shoot-yourself-into-the-foot
> PR which did nothing but play into the hands of the proprietary
> software industry.

Independent of how you think about the timing and its strategic value, the
problem is real and it's not going to go away by not talking about it. It
seems pretty clear to me that patents will be a major weapons against FOSS
and the more this becomes public knowledge, the better it is for the fight
against software patents. Contrary to what Moglen preaches so eloquently,
the development of technology is never straight and the FSF does not have
it all figured out.

Recently, a two year old memo written by someone at HP arguing that
patents are the Archilles heel of FOSS has surfaced [2]. He points in
particular to section 7 of the GPL [3] which explicitly forbids to
distribute GPL'ed software that contains patents that require a license
fees. Asked to respond to it, Eben Moglen copped out, saying that the
filing of a lawsuit alleging patent infringement would not be enough to
activate section 7. What he did not say was that positive court decision
would!

Now, is this going to be 'shutdown' FOSS? I doubt it, because major
companies such as IBM and HP have invested massively into FOSS and
Microsoft and others have little interest to alienate them. But it could
substantially transform the social dynamics around FOSS. After all, one of
the not so unintended consequences of the patent system is that it allows
to form cartells without running into anti-trust issues.


[1] http://slashdot.org/article.pl?sid=99/08/31/0143246
[2] http://www.newsforge.com/article.pl?sid=04/07/19/2315200
[3] http://www.gnu.org/copyleft/gpl.html


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http://felix.openflows.org




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