Archive for the 'Legal' Category

One less open source licence to worry about

Published by Ross Gardler on April 16, 2009 in Legal. 5 Comments

Open source licence proliferation has long been recognised to be a problem. The Open Source Iniatitives License Proliferation Committee wrote the following in May 2006:

  1. too many different licenses makes it difficult for licensors to choose
    Some people use “license proliferation” to mean that there are just too many licenses and that someone needs to take steps to reduce the number. While this would be great, the OSI cannot make anyone use or not use a particular license. All we can do is educate and urge people to use a smaller subset of licenses. This comment generally came from individuals and small companies.
  2. some licenses do not play well together
    Some people use “license proliferation” to refer to the fact that some open source licenses do not inter-operate well with other open source licenses. While we can urge people not to mix non-mixable licenses, we cannot keep people from doing so. This comment generally came from larger companies.
  3. too many licenses makes it difficult to understand what you are agreeing to in a multi-license distribution
    This is related to the previous comment, but is somewhat different since it doesn’t complain about how the licenses interact, just that there are too many different individual licenses covering certain distributions and that it takes a lot of time to read and understand them all. This comment usually came from larger companies.

The OSI has, since the publication of this report, grouped licences as either “popular and widely used”, “special purpose”, “redundant”, “non-reusable”, “superseded” or “other”. OSS Watch encourage everyone to use one of the “popular and widely used” licences as these cover the major needs of most community and business models (the special purpose licences do have their place, but they are minority licences).

Today it was announced that the number of licences in the recommended group has been reduced from nine to eight since the Eclipse Foundation, along with IBM, have taken the steps necessary to supersede the Common Public License 1.0 (CPL) with the Eclipse Public License 1.0  (EPL).

Hurrah!!!

Microsoft vs Tomtom: Is this Ragnarök?

Published by Rowan Wilson on February 27, 2009 in Business, Development, Legal and Standards. 4 Comments

Frantic cries have been heard from all around the FOSS community since the announcement that Microsoft has taken patent infringement action against a distributor of the Linux kernel. Tomtom, an extremely successful Dutch company which sells GPS navigation devices is being sued by Microsoft for infringing on patents it holds, some related to mobile computing, others to the FAT file system. It’s the latter that is disturbing the Linux community, as the Linux kernel implements compatibility with the FAT file system and indeed it is the Linux kernel in some of Tomtom’s devices that Microsoft is accusing of infringing its FAT patents. Horacio Gutierrez, Microsoft’s senior intellectual property lawyer characterised the alleged  infringements this way:

“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. 

What does that two-finger gesture mean?

Published by Rowan Wilson on January 30, 2009 in Legal. 0 Comments

Apple Inc, proud manufacturers of the Mac and the iPhone, were granted a  computer-implemented method patent on January 20th for ‘[a method] of detecting one or more finger contacts with the touch screen display, applying one or more heuristics to the one or more finger contacts to determine a command for the device, and processing the command’. This patent has attracted much attention, as does all information that emanates from Apple, one of technology’s most fetishised brands. This particular snippet has generated even more buzz than usual, however, as it has been interpreted as relating to some feisty comments made by Apple’s Chief Operating Officer Tim Cook during a conference call with Wall Street analysts the day after the patent was granted. Asked about how Apple intended to continue to succeed in the smartphone arena, particularly when other products like the as-yet-unreleased Palm Pre seem to be aping the iPhone’s functionality closely, Cook replied:

“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.

UK Appeal Court Decision Significantly Strengthens Software Patentability

Published by Rowan Wilson on October 12, 2008 in Legal. 1 Comment

On Thursday the England and Wales Court of Appeal delivered a decision that will significantly strengthen the patentability of software in the UK. As I’ve mentioned before on this blog, the UK Intellectual Property Office(IPO) has been struggling to find a consistent method for examining patent applications that involve software. As an EU member, the UK is supposed to have the same rules on patentability of inventions as the European Patent Office (EPO), and to this end the European Patent Convention of 1973 was ‘imported’ into UK law in the from of the UK Patents Act 1977. Both the Convention and the Act state fairly plainly that software is excluded from patentability. Of course, having the same ruleset is only half the battle - you also have to interpret the rules in the same way and therefore produce decisions that are consistent with one another…

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).

Covenants or Conditions? Federal Circuit Clarifies Important FOSS Licensing Question

Published by Rowan Wilson on August 14, 2008 in Legal. 0 Comments

In this blog we’ve talked before about the vexed question of whether free and open source software (FOSS) licences should be primarily considered as contracts or bare licences. A useful tool for considering this question (in the US at least) became available today in the form of a decision by the US  Federal Circuit Court of Appeals (pdf). To briefly sketch the complex background to this decision, Robert Jacobsen, one of the authors of the JMRI Project - a set of java tools for controlling model trains - tried to get an injunction in the California court against Matthew Katzer, an owner of a model train software business for infringement of copyright. The entire vexed and ugly history of the dispute can be read on the JMRI project Sourceforge page; it includes accusations of patent infringement, libel, unfair competition and price-fixing. Our concern here though is just with the copyright claim. Jacobsen had asked the California court to stop Katzer ever again distributing JNRI code without copyright notices (Katzer admitted doing so but had already pulled the distribution by the time the court came to consider the question).

The California court had refused to grant an injunction on the basis that the Artistic License (under which JMRI is distributed) was in their view a complete copyright licence, permitting the licensee to exercise all rights usually reserved to the copyright owner. While the court recognised that the Artistic License included some statements about what a licensee must do in order to obtain these rights (things like keeping copyright statements intact),  it characterised these as essentially contractual responsibilities, promises (or ‘covenants’ ) made by the licensee in order to obtain a complete copyright licence. As such, the California district court found, Jacobsen might have a claim in contract law, but could not argue that his copyright had been infringed upon.

This decision was an extremely unpleasant shock for the public licensing community at large. If applied as a general principle across all public licences such as Creative Commons, open source and free software varieties, it would have catastrophic effects, at least in the US. “Why?” you might ask “Surely as long as you can take legal action in some form then the licensed materials are still protected?” There are a couple of answers to that. Firstly, suing for breach of contract is more complex and expensive than seeking injunction for infringement of copyright. Contract law varies alarmingly between countries, while copyright law is fairly standard thanks to international treaties like the Berne Convention. Secondly, the normal remedy granted for breach of contract is financial damages, generally calculated according to the economic loss suffered by the plaintiff. In the case of publicly licensed software or content, it could be hard to make an argument for significant damages, and as a result their stipulations may become widely ignored.

Jacobsen appealed this decision to the Federal Circuit. A posse of public-licensing superstars (Wikimedia, Creative Commons, the Linux Foundation, the Perl Foundation, the Open Source Initiative, the Software Freedom Law Center) submitted a joint Amicus brief (pdf) to the appeal court, which makes interesting reading. Their argument was that the district court had made a mistake when they characterised the Artistic License as a complete copyright licence with contractual riders. Instead, the super-posse argued, it was a limited copyright licence, granting some rights under copyright under certain limited circumstances (such as the licensee behaving themselves and sticking to the conditions). They also argued that the district court had failed to understand the precedents that they cited (including a case in which American Monty Python star Terry Gilliam had succeeded in stopping US television company ABC editing old Python shows in ways that their licence from the BBC did not allow). The amicus brief is also noteworthy for its continual stressing of the innovatory power of public licensing, its ability to facilitate contribution from anyone and assessment by all. This could be read as a counter argument to the oft-quoted dubious accusations that public licensing is in fact non-innovatory, devalues the effort needed to create copyright material and encourages plagiarism.

The appeal court’s decision (pdf) agreed with Jacobsen (and the super-posse). Rather than being a complete copyright licence with accompanying covenants, the appellate court ruled, Artistic Licence was a grant of certain rights under copyright subject to certain conditions. If you did not abide by the conditions, you didn’t get the grant. The decision also praised the principle of public licensing and rubbishes claims that public licensors suffered no economic loss if licensees broke their imposed conditions:

Open source licensing has become a widely used method of creative collaboration that serves to advance the arts and sciences in a manner and at a pace that few could have imagined just a few decades ago. For example, the Massachusetts Institute of Technology (MIT) uses a Creative Commons public license for an OpenCourseWare project that licenses all 1800 MIT courses. Other public licenses support the GNU/Linux operating system, the Perl programming language, the Apache web server programs, the Firefox web browser, and a collaborative web-based encyclopedia called Wikipedia. Creative Commons notes that, by some estimates, there are close to 100,000,000 works licensed under various Creative Commons licenses. The Wikimedia Foundation, another of the amici curiae, estimates that the Wikipedia website has more than 75,000 active contributors working on some 9,000,000 articles in more than 250 languages.

Open Source software projects invite computer programmers from around the world to view software code and make changes and improvements to it. Through such collaboration, software programs can often be written and debugged faster and at lower cost than if the copyright holder were required to do all of the work independently. In exchange and in consideration for this collaborative work, the copyright holder permits users to copy, modify and distribute the software code subject to conditions that serve to protect downstream users and to keep the code accessible. By requiring that users copy and restate the license and attribution information, a copyright holder can ensure that recipients of the redistributed computer code know the identity of the owner as well as the scope of the license granted by the original owner. The Artistic License in this case also requires that changes to the computer code be tracked so that downstream users know what part of the computer code is the original code created by the copyright holder and what part has been newly added or altered by another collaborator.

Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects. Improvement to a product can come rapidly and free of charge from an expert not even known to the copyright holder.

The case will now return to the California district court to be re-considered in the light of these findings.