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Re: <nettime> A 'licensing fee' for GNU/Linux?
Florian Cramer on Tue, 10 Aug 2004 18:53:08 +0200 (CEST)

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

Am Montag, 09. August 2004 um 14:08:05 Uhr (+0200) schrieb Felix Stalder:
> Small companies have none of that and, this is the key point, neither have
> various foundations and authors of FOSS.  Consequently, neither small
> proprietary software companies, nor FOSS communities can issues such
> guarantees and hence the users of their software will have to assume the
> risk.

Felix, I much agree with the differentiations you introduced in your
revised theses. But it seems to me that the question of software
vendors/distributor assuming responsibility for patent infringement
lawsuits is really a question of large vs. small, and that the
consequences for Free Software are even more indirect, but nonetheless

After all, many important Free Software projects _are_ run by large
companies: OpenOffice by Sun, Evolution and Mono by Novell, Eclipse by
IBM, the Linux kernel by OSDL, whose list of sponsors reads like Who's Who
of the computer industry. All these companies have the resources (and
their own patent portfolios) to defend their own Free Software development
projects against patent infringement claims.

More importantly, the same applies for large commercial providers of Free
Software such as Novell/SUSE and Redhat. They could make, and partly
already have made, "intellectual property" infringement a part and selling
point of their expensive "enterprise" licensing packages. As a result,
GNU/Linux could splinter into two factually different operating systems,
an expensive commercial "enterprise" OS and a hobbyist community operating
system that has to stay below the radar of companies who might sue for
patent infringement.

> For users of FOSS unwilling to accept such risk -- mainly large
> institutional users -- there are two possibilities. One is to buy their
> FOSS solution from a major vendor that offers indemnification as part of
> the service contract (similar to a provider of proprietary software). The
> other is to purchase insurance (like the one offered by OSRM). Both create
> costs not entirely dissimilar to a licensing fee.

I think it is more plausible that, if the current lunacy of software
patenting and DMCA-style copyright stays in place, that IT departments of
all companies and public institutions will have to buy liability insurance
contracts for possible copyright/patent/trademark infringement of their
software infrastructure.

Any commercial software provider can of course make such an insurance a
shrinkwrap part of the package s/he sells, as a convenience for the
customer (although I doubt large IT departments would consider that
sufficient).  Again, this doesn't hurt free software - in the meaning of
libre software - per se, since it can be sold commercially and thus with
the necessary insurance policy included. It will however obstruct the
proliferation of gratis software, regardless whether it's free/open source
or proprietary.



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