The International Free and Open Source Software Law Review (IFOSS L. Rev.) is a collaborative legal publication aiming to increase knowledge and understanding among lawyers about Free and Open Source Software issues. Topics covered include copyright, licence implementation, licence interpretation, software patents, open standards, case law and statutory changes.

In the first issue there are discussions of the Jacobsen vs Katzer case in the US and its repercussions for both in the US and the UK, the peer-to-patent programme and a proposal to help organisations procuring  free and open source software understand and manage their risks. It’s good if slightly technical stuff, and I highly recommend it.

If, as a consequence of a court judgment or allegation of patent infringement or

for any other reason (not limited to patent issues), conditions are imposed on

you (whether by court order, agreement or otherwise)that contradict the

conditions of this License, they do not excuse you from the conditions of this

License. If you cannot distribute so as to satisfy simultaneously your obligations

under this License and any other pertinent obligations, then as a consequence you

may not distribute the Library at all.  For example, if a patent license would

not permit royalty-free redistribution of the Library by all those who receive copies

directly or indirectly through you, then the only way you could satisfy both it

and this License would be to refrain entirely from distribution of the Library.

This clause is generally understood to mean that paying for patent licences to distribute LGPLv2.1-licensed code is impossible; once you pay for the licence you lose your right to distribute, so it’s never worth doing (and this in turn acts as a deterrent to patent owners looking to get per-copy royalties on LGPLv2.1- and GPLv2-licensed software - even if you win the case against the distributor, you kill the product and will get no royalties going forward). Nevertheless, Google’s lawyers seemed to have found a way through waters which had previously been thought unnavigable. As the argument on the thread continued, it emerged that Google’s approach had been to seek a patent licence for Chrome itself, not the ffmpeg library that was actually doing the video decoding. The LGPLv2.1 is designed to allow code it covers to co-exist in an uneasy peace with code covered by any other kind of licence, including patent licences. In this was free software libraries could be used with proprietary software in a way that would be impossible if they were covered by the full GPLv2. Google argued that as long as they never sought patent rights to use ffmpeg, no-one could accuse them of not passing on those rights to others in a way that ffmpeg’s licence mandated. All their permissions to use patents rested with Chrome itself - however it chose to do the decoding. 

 Now this is a sly move, and not one that has been attempted in as high-profile a piece of software as Chrome up to now. Will Google get away with it? Well that question really reduces to the question: Who might try to stop them? In this case Google Chrome is relying on licences from the MPEG-LA for the patents used to decode MPEG4 (and possibly theora if they want to rule out any future challenges from MPEG-LA on that score) and a software licence from the ffmpeg project. The likelihood is that Google have paid well for complete coverage from the MPEG-LA, and so a challenge from that quarter seems unlikely. What about the ffmpeg project?  Well they clearly explain that they have no specific knowledge of any patents infringed by distributing ffmpeg. Of course, everyone is aware that the project very likely infringes on many patents in the H.264 patent pool at the very least, but time and experience has taught programmers operating in patent-rich problem domains to never read the relevant patents. It only increases the likelihood that you will infringe upon them and increase the damages if it can be shown that you knowingly infringed. What this means for ffmpeg is that it would be very difficult for them to argue that Google is not in compliance with the LGPLv2.1 for ffmpeg because they have licensed some patents ostensibly for use in Chrome. To do so they would have to explain exactly which of the patents licensed were in reality embodied in ffmpeg, and would therefore trigger Google’s responsibilities inder the LGPLv2.1. This could be seen as an unwise move for ffmpeg. With neither the MPEG-LA or ffmpeg likely to question Google’s actions, it seems likely they will get no substantial challenge to their actions. 

Elections for the European Parliament are scheduled for 2 June 2009, and this seems like an ideal opportunity to broach the subject of ICT policies and draw the attention of candidates to the issues surrounding choices by government and its administration concerning software and systems. Hopefully, this will at least raise the profile and gain better consideration of the underpinning issues and lead to wider adoption of Free and Open Source Software.

One initiative attempting to do this is the Free Software Pact (FSP) providing candidates with a method to inform the voting public that “they favour the development and use of Free Software, and will protect it from possible threatening EU legislation.”

As Chairman of the Open Source Consortium I was asked to help promote the FSP. Fundamentally I agree with the underlying objectives of the FSP but I am not sure that the approach to implementation is well thought through.

I am convinced that level playing fields coupled with open and transparent processes topped off with effective governance (easier said than done, of course) are all that Free Software needs for new installations and also to trickle through the arteries and capillaries of existing ICT deployments, eventually eliminating the externalities of proprietary software (largely summarisable as the deadweight costs arising from distortions in the market). I should add that this opinion is vendor neutral. I don’t care who it is or how Free Software is supplied.

If we are to achieve this nirvana we need to approach those we are seeking to influence in terms that are meaningful to them. This is not always easy but that is not an excuse not to try. And it may require several goes. Additionally if one is seeking to influence politicians or administrations is is easier to go with the grain of things than start again somewhere else.

With that in mind and prompted by the FSP, it seems right to put my drafting where my opinions were. Accordingly the OSC has created a draft form letter that hope as many people as possible will send it to the candidates in their constituency.

Dear…

Support Implementation of draft European Interoperability Framework V2 “EIF V2″

As you are a candidate in the forthcoming elections for the European Parliament I am writing to seek your support for a simple measure that will help citizens, businesses and European society.

Information and Communications Technology (ICT) has become a critical part of European infrastructure; a modern economy cannot function without it.

Optimal choices in ICT need a European policy on interoperability in ICT.

Interoperability means it does not matter how you mix and match the constituent parts of ICT, they will just work with each other without problems or issues. Such choice also means that users of your ICT systems (e.g., users of European or national government on-line services) do not have to make ICT choices based on your decisions, e.g., having to use a specific web browser (that itself may require a specific operating system).

Many European and national ICT systems have been implemented using software which does not enable easy interoperability, and instead creates an effect where it becomes easier, and some cases necessary, to choose more of the same supplier’s products, and harder to choose competing products.

Moreover, once governments or local administrations have decided to use software that does not enable easy interoperability, that choice imposes a requirement for the citizen or customer to choose the same software.

This network effect prevents choice, competition and limits opportunities to promote innovation outside vendor control, in the whole European arena for ICT.

To have agreed as policy the (draft) EIF V2 ( http://ec.europa.eu/idabc/en/document/7728) will halt and eventually reverse this situation.

This draft has been criticised by vendors currently benefiting from the current uneven playing field, but its adoption would not prevent any vendor, current or future, from supplying ICT to European or national governments.

The EIF is not considered to by all to be perfect, but getting it firmly “inside the tent” would enable it to be improved. I urge you to adopt or adapt this letter and write.

You can find your existing MEPs and candidates here.

Gerry Gavigan

7. If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues),conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you,  the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

What this meant for Tomtom was that if they settled with Microsoft by - say - agreeing to pay them 1p for each copy of GNU/Linux they distributed, then they would in fact have invalidated their licence to distribute GNU/Linux at all. The GPL v2 insists that either the code it covers goes out with no additional encumbrances or it doe not go out at all. Now Microsoft is very aware of this provision. Their cross-licensing deal with Novell - detailed in an OSS Watch blog post here - was structured precisely so as to avoid this consequence. Many in the free and open source community feared that Tomtom would strike a similar deal with Microsoft, and fans of the lastest version of the GPL, v3, announced Microsoft’s actions in this case should act as a ‘wake-up call’ for developers to begin using the licence, as it includes changes designed to make such deals apply to the entire community if they exist at all. In the event, it would seem from the information we have that Tomtom has avoided emulating Novell, and has instead agreed to remove the FAT components from the version GNU/Linux they distribute on their devices within two years. This strongly indicates that Tomtom have accepted no licence from Microsoft relating to GNU/Linux itself, and Microsoft have agreed to just give them breathing space to remove allegedly infringing components, rather than insisting they take a licence.  So - a happy ending for all concerned? Not really. Microsoft must be pleased, as they have managed to give the appearance of winning a battle in which they were accusing GNU/Linux of infringing on their patents while not actually having to suffer examination of the validity of their patents in court. The free and open source software community is left wondering whether the FAT patents could be used against other distributors of GNU/Linux. Jim Zemlin, Executive Director of the Linux Foundation, seemed to be calling on developers to cut FAT implementations out of their software altogether. A couple of days ago, OIN announced the following:

…the patents used in the recent TomTom patent action have been posted by OIN for review and submission of prior art by the Linux community. Submissions may be made by visiting http://www.post-issue.org, clicking on the appropriate patent and selecting “Submit Prior Art”.

The Peer to Patent web site that OIN cite in that link is an initiative designed to allow the technology community at large to pool their collective expertise and thereby perhaps invalidate patents that ought not to have been granted. One way to invalidate a patent is to show that it was not innovative at the time the patent was applied for, that there was in the jargon ‘prior art’. The Peer to Patent site acts as a clearing-house for evidence of prior art on specific patents. In fact one of the FAT patents in question, 5,597,517,  has already been re-examined, provisionally invalidated, amended and then declared valid again after the Public Patent Foundation  or ‘PubPat’ (tagline: ‘representing the public’s interest in the patent system’) asked for the US Patent Office to take another look back in 2004. It will be interesting to see how far this pillorying of the Microsoft’s FAT patents will go towards their invalidation, given that this is their second re-examination.So another Microsoft patent case goes by and we are still no closer to knowing how justified Microsoft’s patent threats against Linux really are. Tomtom clearly found the effort involved in engineering out the FAT patents a worthwhile expense, but only tells us that it was likely to work out cheaper than the lawyer’s fees, and that Tomtom understandably had no interest in acting as a vanguard for the community on the issue. Perhaps the most reassuring thing for the community is that - so far - Microsoft has only claimed ownership of technologies which can be engineered out of GNU/Linux without breaking it.

That’s how the description of Kable’s upcoming conference on Open Source in the Public Sector begins, and it’s becoming a regular theme in marketing in every sector. This morning brings news that Microsoft is planning to air a series of TV ads that attacks Apple’s pricing as inappropriate in these cash-starved times. In the light of this, Steve Ballmer’s assertion last week that Apple customers are essentially paying upwards of $500 else for a logo and nothing else looks like a teaser for the ad campaign. Ballmer’s sound-bite was taken up by noted open source blogger Glyn Moody who mischievously suggested that this was Ballmer’s backhanded way of acknowledging Windows had lost the fight against Linux to be the pre-eminent OS on the low-priced, tiny and increasingly popular sub-laptops known as netbooks. After all, writes Moody:

“who’s going to pay extra money just to get the Windows logo on a netbook, when they can get the same features for less with free software…?”

Clearly the IT sector is in the mood to be wooed with promises of low prices. In the public sector too, as this blog has mentioned in the past the February 2009 Cabinet Office action plan Open Source, Open Standards and Reuse strongly promoted the consideration of free and open source software:

“Open Source has been one of the most significant cultural developments in IT and beyond over the last two decades: it has shown that individuals, working together over the Internet, can create products that rival and sometimes beat those of giant corporations; it has shown how giant corporations themselves, and Governments, can become more innovative, more agile and more cost-effective by building on the fruits of community work…”

and adding the following imperative added to public policy on IT procurement:

“Where there is no significant overall cost difference between open and non-open source products, open source will be selected on the basis of its additional inherent flexibility.”

This document should perhaps be read in the light of the Chancellor Alistair Darling’s demand that public sector IT should find effiency savings of £5bn before 2011…

Clearly this is an appropriate time for an event such as Kable’s (disclosure: OSS Watch supports this event and will be speaking at it) which invites delegates from the public and not-for-profit sectors to come and hear about the pros and cons of free and open source adoption and to discuss the issues with others in the same position. As well as attendees and speakers from OSS Watch, there will be representatives from across the public sector and from the Open Source Schools project, the Open Source Consortium, the British Computer Society’s Open Source Specialist Group and noted think-tank the Centre for Policy Studies. It looks to be an interesting event. Hope to see you there…

“Yes, well, three of the eight patents in this dispute read on the Linux kernel as implemented by TomTom. The other five relate to car navigation proprietary software used by TomTom.”                   

Words like these bring back terrible memories of Microsoft’s - and particularly Microsoft CEO Steve Ballmer’s -  past statements in this area. Back in 2004  Ballmer told the Asian Government Leaders Forum in Singapore that Linux infringed on “over 228″ software patents and that

“somebody will come and look for money owing to the rights for that intellectual property…”              

Journalists seeking clarification of Ballmer’s comments at the time from Microsoft’s PR department were told that Ballmer was referring to a 2004 study by Dan Ravicher  that identified 283 potential software patent infringements within Linux. Ravicher responded that Ballmer was misreporting the essence of the report, which was that any operating system would necessarily infringe the 283 patents in question (Ravicher did not list them) and that therefore Linux was in no greater danger of infringement than any other operating system. The report was commissioned and published by a firm called Open Source Risk Management, who coincidentally were just about to start selling insurance for users of Linux who feared being hit with unexpected patent fees. Ravicher is now Legal Director of the Software Freedom Law Center, a law firm that specialises in helping authors of FOSS.

Of course this was not the only piece of horse-spooking that Microsoft has engaged in over the years. In May 2007 senior Microsoft lawyers Brad Smith and Horacio Gutierrez (sound familiar?) told Fortune Magazine that Linux infringes on 235 Microsoft-owned software patents and that:

“This is not a case of some accidental, unknowing infringement… There is an overwhelming number of patents being infringed.”       

Shortly after this Microsoft announced a deal with Novell that would protect customers using Novell’s SUSE Linux distribution from patent action by Microsoft - the obvious implication being that customers of all other Linux distributions must therefore be at risk (OSS Watch covered this issue and the Free Software Foundation’s reaction in our description of the GNU GPL v3 here).

So is the current climate of fear really warranted? Probably not. For a start, Gutierrez himself is at pains to say that this is not the beginning of the earth-shattering IP showdown that Linux users have been fearing for years:

I should say, Microsoft respects and appreciates the important role that open-source software plays in our industry, and we respect and appreciate the passion and the great contribution that open-source developers make in our industry. That appreciation and respect is not inconsistent with our respect for intellectual-property rights. Partnership with all technology companies, including those that adopt a mixed-source model, must be built on mutual respect for IP rights — rights that we all rely on for driving innovation and opportunity.Now, this case is against TomTom, and it involves infringement of Microsoft patents by TomTom devices. Each case is different, and this one is specifically about the use of software by TomTom in its devices.        

(from here.) In the past it has clearly been a strategic aim of Microsoft’s to cast doubt on the legality of Linux. The Microsoft quotes mentioned above were without doubt intended to make potential Linux users think twice about where they should spend their money. With the Tomtom case - in contrast - Microsoft seems to be at pains to go further than it needs to in calming Linux users about the potential for broad litigation against their chosen operating system. Just note the contrast between the Gutierrez of 2007’s Fortune article and the Gutierrez of 2009’s Tomtom-related interview. There seems to be a genuine movement towards playing down the implied threats of the past.

 Why has this happened? It’s almost impossible for an outsider to say.It is clear that Microsoft’s former strategy of implying that Linux was about to disappear under storm of patent infringement suits did not significantly affect Linux uptake. The Linux community adapted through initiatives like the Open Invention Network - a patent-holding organisation supported by Sony, Novell, Red Hat, IBM, NEC and Philips that licenses its IP at no cost to anyone who agrees not to assert their own patent rights against Linux. Of course, if you choose to assert your rights against Linux, the OIN will closely examine your products to make sure that none of their patents are embodied in them. In practice it’s this kind of ’sue-me-and-i’ll-sue-you’ standoffs that prevent all-out patent war in the IT sector, and the number of patent-holding corporations with a stake in Linux now makes it potentially as risky to sue as any other single large technology player - maybe riskier given the added liability of blogosphere backlash and community hatred for any moves against FOSS. 

When OSS Watch spoke to OIN’s then-CEO Jerry Rosenthal in 2007 he believed that they would probably never have to actually sue a big player like Microsoft. So while the Microsoft-Tomtom case probably does not herald the the final Microsoft campaign against FOSS, it will be interesting to see whether OIN sees it as sufficient reason to look into enforcing their own patents against Microsoft. Tomtom must be hoping that they do. 

“We like competition, as long as they don’t rip off our IP… I don’t want to talk about any particular company. However, we will not stand for having our IP ripped off. And we will use whatever weapons we have at our disposal.”

(from here)

Palm’s Pre had been receiving extremely positive press attention after being shown off at the Consumer Electronics Show 2009 in early January. Like the iPhone, the Pre features a large touchscreen interface that responds to taps and gestures from one or more fingers. Many commentators remarked on how like the iPhone Palm’s new product was, hence the analyst’s question to Cook.

Now both the Palm Pre and the Apple iPhone are driven largely by closed source software, so how does this all relate to open source? Well up until now the most prominent ‘feature competitor’ to Apple’s iPhone was the G1, a touchscreen phone developed for network provider T-Mobile by Taiwan’s HTC (an acronym, charmingly, for High Tech Corporation). The G1 was notable not only because it was the first iPhone-a-like to market, but also because it was the first phone to run Google’s Linux-based open source smartphone operating system Android. The G1 also sports a touchscreen of almost identical specification to the screen used in the iPhone, including the ability to detect and track contact from more than one finger simultaneously. However Android itself is not capable of tracking multiple simultaneous touches, and so for example relies on visual ‘+’ and ‘-’ buttons to enable zooming into an image or web page, as opposed to the iPhone’s intuitive ‘pinch’ and ‘de-pinch’ gestures.

Now as Android is open source, it did not take long for enthusiastic users to track down why the operating system did not make information about the location of additional simultaneous touches available for applications to use, thus enabling sexy iPhone like gestures. Apparently the relevant code in the touchscreen driver (software which acts as the intermediary between the touchscreen hardware and the phone’s main processor) had been purposefully ‘commented out’ or rendered inoperative. While many in the Android community remain hopeful that their G1’s - or possibly some successor Android phone - will one day feature multi-touch gestures, it seems likely that Google has deliberately suppressed this functionality for fear that Apple lawyers might demand royalties or cessation of distribution over infringement of their multitouch patent.

Surely, you might think, Google are a big enough corporation to be able to afford to license Apple’s patent? They are indeed. However, licensing a patent for incorporation into a piece of open source software means opening oneself up to entirely unquantifiable costs. The Apache Software License 2.0 under which Google’s portion of the Android platform is distributed, has this to say about any patents that might be embodied in the software it covers:

“3. Grant of Patent License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted…“

Google sees Android as an open platform on which to deliver their services, and therefore wants as many handset manufacturers as possible to build devices that run it. In order to license the multitouch patent from Apple for use in Android, Google would have to commit to paying the patent licensing fees for an unknowable number of potential devices from manufacturers all over the globe. Even if Apple were prepared to license their patent on such a basis, it would be an immensely risky financial commitment for Google. For the moment, it seems that T-Mobile, HTC and Google are happy to wait for someone else to test Apple’s resolve and the robustness of their patents.

Of course, individual device manufacturers are at liberty to license patents just for use on their phones, and this may indeed happen with Android devices in the future. The problem with this approach is that, while it gives a valuable selling point to the manufacturer in question, it results in a fragmented platform, with application developers having to decide whether to adapt their programs to take advantage of manufacturer x’s special multouch Android phone, or just stick with implementing functionality that is present on the majority of standard Android phones. In the same way, Palm may choose to license Apple’s patent for the Pre, or they may take the other popular approach to patent disputes between high-tech companies - threaten back. Palm has a long history in mobile computing and it is quite possible that, if motivated to look, they could find patents in their own portfolio that are implemented in Apple’s devices, and thereby force some kind of mutual accommodation.

None of this will help free and open source implementations of multi-touch patents, however. For these to truly flourish, it will be necessary for the patent (and many others that exist) to be invalidated. This could happen if it is re-examined and found to be an obvious progression of previous technologies, or perhaps if it is shown that the idea was published before the patent was applied for. It may even happen that the recent infamous US Federal Circuit decision in re Bilski (as discussed in this blog previously) will make technology firms less willing to litigate expensively in support of computer-implemented method patents such as this one. Either way, it seems it will be a while before our open source programs will understand what we mean when we pinch them.

• Christmas is around the corner
• Games are the subject of degree courses within UK HE these days

I thought I’d point to the latest release of one of the best free or open source games out there Freeciv. Try not to waste too much time, though.

A couple of weeks ago I had the pleasure of hearing Shane Coughlan speak about - among other things - the patentability of software in Europe. Mr Coughlan is Freedom Task Force Coordinator for the European wing of the Free Software Foundation. In response to a question about software patents, Coughlan stated flatly that they do not exist in Europe. When the audience seemed a little confused by this, he elaborated by saying that although the EPO had granted many applications for software, there was no statutory basis for their existence or enforceability - given the exclusion of software from patentability in the European Patent Convention. The audience were clearly a little confused by this - many came from large software firms with holdings of European patents on software inventions. A member of the audience asked about Coughlan’s opinion on the patentability of software in the UK. The questioner turned out to be David Wood of Symbian - a mobile operating system company based in the UK and now wholly owned by Nokia. It was Symbian who had brought the case we are discussing here, after the UK IPO had turned down a software patent application of theirs for a layer of indirection in library function lookups. Recognising a Symbian representative, Coughlan acknowledged that - yes - the UK might be considered separately as Wood’s own company had managed to get the UK courts to invalidate the rejection of their patent. Coughlan also pointed out that - as a Common Law system - UK legislation is effectively ‘updated’ by court decisions on its meaning and application. In the rest of Europe, Coughlan pointed out, a Civil Law system predominates, and prior court decisions are generally not taken to form part of the body of applicable law. Thus while arguably (and Coughlan did argue it) the activities of the EPO and European courts had no effect whatsoever on the fundamental unpatentability of software, actions like Symbian’s in the UK had real effects on the UK’s legislative approach to patentability.

Now that Symbian have conclusively won their case (and leave to appeal to the House of Lords has been denied) the resulting changes must be examined. The judgement examines previous rulings on software patentability, both at the European and UK level, and recognises the essential impossibility of reconciling all views. Once again the issue of what a ‘technical effect’ is becomes central, an issue we have discussed before on this blog. In practice no-one quite knows what a ‘technical effect’ is - all that is certain is that without one a piece of software is just a piece of software and thus cannot be patented due to the statutory exclusion in the European Patent Convention. In this case, the Court of Appeal has decided that the software in question has a

knock-on effect of the computer working better

and that this ‘technical effect’ is all that is required for the software to be more than mere software and therefore patentable. This is essentially the argument advanced by Symbian’s lawyers - that the functioning of a computer in itself can be seen as a technical problem, and that therefore software which makes a computer ‘work… better’ is software which has an additional ‘technical effect’ . You might ask what software would not qualify as patentable under this scheme, and you would have a good point. The judgement points out that software which embodies other kinds of unpatentable inventions could still not be patented:

the program in this case does not embody any of the items specifically excluded by the other categories in art 52; thus, it is not a method of doing business…  or a mathematical method…  or a method for performing mental acts…

So - to summarise briefly - the new element in this judgement is an extremely broad definition of what a technical effect can be, and thus a radical widening of range of patentable software. Provided that your software does not embody anything that is otherwise disqualified from patentability, you can patent it in the UK (subject to all the other normal requirements that it is novel, involves an inventive step and has an industrial application).