Archive for the 'Legal' Category

Machine, transformation or cop-out?

Published by Rowan Wilson on July 2, 2010 in Business, Development and Legal. 1 Comment

After a long, long wait, the Supreme Court of the United States has finally delivered its opinion (pdf) in the so-called ‘Bilski’ appeal. The judgement was eagerly awaited by those who opposed software patents, as it held the potential to change the rules on patentability of software in the US.

Thirteen years ago Bernard L. Bilski and Rand Warsaw applied (pdf) for a patent on a process that sought to allow commodities traders to reduce their risk exposure. The key components of their invention were a list of steps traders could take, and an expression of those steps as a mathematical formula. The patent application was rejected on the basis that it did not describe a specific apparatus, that it manipulated only abstract ideas and that the problem it solves is an exclusively mathematical one.  Bilski et al kept appealing the decision at progressively higher courts, and kept getting knocked back. Finally the en banc court (a kind of grand moot of all the Court of Appeal judges reserved for issues where uniformity of opinion is particularly important) knocked it back while also tearing down one of its previous ‘tests’ for patentability which might otherwise have been interpreted as supporting Bilski et al’s arguments. This test, established in the case of State Street Bank & Trust Co v. Signature Financial Group, Inc. in 1998, held that a process could be patented if it produced a “useful, concrete, and tangible result”. The State Street decision was taken at the time as a green light for patent applications on abstract concepts like business and software processes.

In the light of the Bilski patent claim, the en banc court decided that this was too low a hurdle, and that they needed a new test for patentable processes. Instead they insisted that a process must meet the following two criteria: “(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.” This has become known as the ‘machine or transformation test’. Bilski responded by taking the final throw of the dice and asking the US Supreme Court to review the en banc court’s decision. The Supreme Court agreed.

So what does this have to do with software? Well business processes are frequently embodied in software, and the discussions of where the borderline between invention and abstraction lies is an extremely relevant one in the world of software development. The ‘machine or transformation test’, if affirmed by the Supreme Court, would very likely have made many pure software inventions unpatentable (as general purpose computers are not ‘particular machine[s]‘, and their own internal processes and data unlikely to qualify as ‘particular article[s]‘). After the en banc decision hopes were high in the anti-software-patent community that the Supreme Court would affirm the ‘machine or transformation test’ and make widespread software patenting a thing of the past. On the other side of the argument, groups like the Business Software Alliance and Dolby Labs submitted amicus briefs to the Supreme Court arguing that the machine or transformation test would kill off a large proportion of their livelihoods.

Perhaps inevitably the Supreme Court has chosen a middle path that brings little certainty to anyone except Bilski et al – who now definitely know they’re not getting their patent. The decision finds that the specific Bilski patent is indeed an attempt to own an entirely abstract concept, and so should be disallowed. It does not, however, go as far as to agree with the en banc court that the ‘machine or transformation test’ is the new gold standard for patentability in these worryingly abstract domains:

The Court’s precedents establish that although that test may be a useful and important clue or investigative tool, it is not the sole test for deciding whether an invention is a patent-eligible “process”

A little further on, the decision gives the effect on software patentability as a good reason for not adopting the ‘machine or transformation test’, and in doing so cites a group of software problem domains that – it seems to imply – are very firmly the proper subject matter for patents:

But there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. As numerous amicus briefs argue, the machine-or-transformation test would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals.

Yet a little further on, we get the qualification:

It is important to emphasize that the Court today is not commenting on the patentability of any particular invention, let alone holding that any of the above-mentioned technologies from the Information Age should or should not receive patent protection.

Clearly there is confusion here. There seems to be an anxiety on the part of the Supreme Court that they will ‘break’ innovation whichever way they lean. This is perhaps best expressed in this elegantly-phrased linguistic shrug:

This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck.

True, that.

Passport without a visa

Published by Gabriel Hanganu on June 2, 2010 in Event, Legal and Software. 0 Comments

Passport without a visa: open source software licensing and trademarks is an excellent article by Tiki Dare, Legal Director of Sun Microsystems USA, and Harvey Anderson, General Counsel, Mozilla USA. Using clear and accessible language from the start, it sets the scene with some background on open source and a few useful definitions. It then looks more closely at the legal structure around trademarks and their role in open source, touching on issues like licensing, copyright, patents and IP along the way. Theoretical discussion is balanced by a sprinkling of examples, bringing these subjects to life and making for a refreshingly readable article.

Although its focus is the US, many of the principles set out in the article apply equally in Europe. It’s written for the legal fraternity, but will be of interest to anyone wanting an overview of trademarks in FOSS, or simply further insight into the whole thorny area. As a relative newcomer to open source, I found it very useful having so much information in one place. Great value for half-an-hour’s reading!

OSS Watch discusses some of these subjects in documents including Open source development – an introduction to ownership and licensing issues and Free and open source software and your patents. Some will also be covered at our forthcoming open source event, TransferSummit.

Guest post: 2010 – Threats to copyleft

Published by Elizabeth Tatham on March 5, 2010 in Guest and Legal. 7 Comments

This post is by Patrice-Emmanuel Schmitz, Director for European institution studies at Unisys Belgium (Brussels). His team is in charge of the www.OSOR.eu (Open Source Observatory and Repository), the Free/Libre/Open Source information platform and forge launched by the European Commission for public sector projects.

Combining freedoms and copyleft in the Gnu GPL licence (invented by Richard Stallman) was the cornerstone of free software. This is now questioned due to the proliferation of incompatible copyleft licences.

After counting 1,800 free software licences used in hundreds of thousands of projects, the Black Duck company patented (Patent US 7,552,093 B2) the technology for controlling the use of open source licensing in a multi-source development process (meaning combined works, elaborated from multiple free components under different licences).

No need to say that patenting proprietary technology to solve copyleft licences incompatibility may not be seen by everyone as a major achievement!

Lamenting on licence proliferation or blaming new licence authors – who all call upon the best reasons of the world, looks useless. It would certainly be reasonable, as recommended by Bruce Perens, to deal with only four permissive and copyleft licences, but this is wishful thinking. New licences are presented every week by FLOSS authors and communities, and no benevolent dictator will limit human innovation regarding licensing.

The heart of the problem does not lie in the number of licences, but in their incompatibility. I do not think that licence proliferation is a failure of the FLOSS movement, it is rather the entire contrary: a testimony of the attractiveness of FLOSS models. In reality, licence proliferation illustrates the failure of a certain model of strong copyleft, as it was initiated by the GPL in the ’80s and – unfortunately – reproduced by nearly all subsequent copyleft licences. Once necessary and successful, this model looks not adapted anymore because it was copied and – seeing the Black Duck patent – one may question (like Ernest Park has done) if the way copyleft is applied does not generate today more jails than freedom.

According to my first study for the European Commission, the Gnu GPL v2 was used in 85% of the FLOSS projects in 2001. With a copyleft that was – maliciously – said “viral” by some, meaning that compatibility is always “upstream” (to itself) and never “downstream” (to other licences), the adoption rate of the GPL should have been universal in 2010, confirming analysts’ assumption that “it is good for the community if people use a single copyleft license [1]”. However, the exact reverse happened: the GPLv2 (reducing) is still used in 50% of projects, the new GPLv3 reaches little more than 5% and other licences are proliferating.

The fact a dozen of licences are used by 90% of the FLOSS projects does not help very much, as the implementation of free solutions (which are often combined works) is done through integrating many components. It is enough to find only one incompatible licence to compromise the distribution of these solutions.

The current situation is damaging for other reasons: it creates endless discussions on what could be considered as integration in combined works (dynamic or static linking) and it feeds disputes. To preserve their communities from schisms, gurus and acolytes urge followers not to use any other copyleft licences, whatever their specific merits or advantages could be. It is time to admit that the strategy of keeping a “captive asset” of licence users was not successful for avoiding proliferation, and that it is not the most appropriate way to reinforce the freedom, collaboration spirit and consistency within the fragmented FLOSS world.

In Europe, the recent – OSI approved and copyleft – European Union Public Licence (EUPL) meets some initial successes due to its compliance with Member States’ law and because it has equal value in the 22 languages of the Union. It has been selected by the German Federal Agency for Information Technologies, it is the licence of choice in schemes published by the Dutch NOiV (see on the www.OSOR.eu site an English version of this scheme, translated by a member of the Swiss administration), a dedicated EUPL site was created in Italy, etc. In Spain, the Ministry of Industry, Tourism and Commerce (where the public agency Red.es is located, in charge of information technology) provides the following in call for tenders (software specifications):

“In case the contractor integrates in the development that is the object of the contract with modules or elements owned by third parties, he must first obtain from the legal owners the licences and rights necessary to transfer the ownership of the development to , which will submit it, including the elements that are performed under the contract (such as fonts, dll, scripts, etc..) to the public licence EUPL. In any case the total and final result of the development and the overall project will be subject to a licence EUPL.”

Applying such provisions excludes strong copyleft components from the delivered combined work: all original developments are allowed; all “permissive” components are allowed (BSD, MIT, etc.); all “weak copyleft” components are allowed (i.e. LGPL), but no Gnu GPLv2 (or V3) components (except if the copyright owner is entitled to dual license the component under LGPL-like terms, for the purpose of addressing the contractual specifications).

The EUPL itself has an innovative approach to solve copyleft licence conflicts: it publishes a downstream compatibility list (to other licenses). It is allowed to integrate EUPL components in a combined work that will be distributed under a compatible licence. The concept is not new, as the FSF applied it with the LGPL a long time ago. The LGPL (now LGPLv3) is convenient for software libraries aimed to produce combined or derivative works: if the library is propagated on its own, it must be under the provision of its original licence (LGPL), but if the library components are part of a derivative work, this work can be licensed under another licence, while the original library remains LGPL. The EUPL compatibility is exactly the same, but its copyleft effect is stronger than in the LGPL (because compatibility is restricted to a limited and published list of other copyleft F/OSS licences). Therefore it is not a weak but – say, a “tolerant copyleft”.

Such flexibility removes incompatibility barriers and restores developers’ freedom, while keeping it in the limits of the desired copyleft effect.

While the EUPL solution may be considered as a conceptual progress, its tangible impact will stay very limited as long other copyleft licences will not give some reciprocity: the quantity of available EUPL-ed material is quite small today, compared to the mass of components that are already available under the GPL terms. Extending the list of EUPL compatible licences (i.e. by adding the still missing GPLv3) will not change the issue resulting from the Spanish specifications, where the government requires the facility to distribute the received combined work under the single licence of its choice (the EUPL in this case).

Solving problems related to the proliferation of copyleft licences requires setting up interoperability provisions between these main licences. It will create, and focus attention, on a kind of “circle of trust” where the original copyleft licensing condition of a software will never be changed, but where – just to take an example – a GPL component could be part of a combined work that the recipient (let’s say the French or the Spanish government) could distribute as a whole under the provision of the copyleft licence of its choice (i.e. CeCILL or the EUPL) provide these licences are allowed in the compatibility list.

The Gnu GPLv3 includes (in its section 13) the exact provision corresponding to the above need, but it is directed to the AGPLv3 only. The intellectual effort to extend this provision in direction of a small list of interoperable licences seems easy to deliver. The reciprocal condition must be added: in the example above, the combined work could be also (as the need may be) distributed under the provisions of the GPLv3.

This could be a way out to the deadlock where we are, due to the proliferation of incompatible licences.

Looking for alternative? Pay a Black Duck patent licence!

Patrice-Emmanuel Schmitz – www.OSOR.eu

[1] R.T. Nimmer, Legal issues in Open Source and Free Software distribution, The Law of Computer technology, Ch. 11 (1997, 2005 Supp.) (“Two different copyleft licenses are usually “incompatible”, which means it is illegal to merge the code using one license with the code using the other license; therefore it is good for the community if people use a single copyleft license (GPL)”).

Jacobsen v. Katzer case settled

Published by Elizabeth Tatham on February 24, 2010 in Legal. 0 Comments

In the closing chapter of this complex story, the intricacies of which have previously been explained in this blog, the parties in Jacobsen v. Katzer have filed a settlement agreement with the California district court. The ruling, which favours Jacobsen, is also seen as a significant victory for the FOSS community in that it establishes for the first time in the US a developer’s right to prevent their copyright and authorship acknowledgements from being removed from their code, and their right to collect damages if the terms of the licences they choose are violated. The implications for the UK are not yet clear, but there is no doubt that the outcome of this closely watched case strengthens the legal standing of open source licensing and could set an important precedent.

International Free and Open Source Software Law Review

Published by Rowan Wilson on July 17, 2009 in Legal. 2 Comments

Rejoice, licence geeks! A new international  journal has been launched covering developments in law relating to free and open source software. To quote the journal’s web site:

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.

Google’s Video Games

Published by Rowan Wilson on June 11, 2009 in Development and Legal. 2 Comments

HTML 5 – the next version of the language used to create web pages – is due to be finalised somewhere between 2010 and 2012, depending on whether you believe the W3C or the WHATWG, the two groups who are contributing to the language specification. One of the expected benefits of the new version is that it will allow page authors to reference and embed videos in their pages without requiring end users to have a specific browser plugin installed. At the moment, Adobe’s Flash and Apple’s Quicktime are the most popular methods for getting video into web pages, but this irks many web purists who feel that the requirement to install these plugins undermines the goal of a truly ‘open’ standards-based web. After all, while web video playback depends upon vendor-specific software, the vendors in question have enormous power to control which browsers and operating systems they will support and therefore which will be widely used. There is of course a powerful pragmatic counter-argument to this, which says that the success of the web is driven by adoption not contemplation and any solution that has been generally adopted has to be considered the correct one. If you are a business wanting to outshine your competitor’s web presence, you are likely to adopt whatever is the most attractive, eye-catching and available technology at the time without worrying to much about high-minded ideals of openness. Into this argument, HTML5 – and specifically its <video> tag – strides to resolve the question once and for all.  That at least was the idea. 

 Proprietary plugins are not the only things that threaten the ‘open’ web. Patents covering the use and creation of certain types of media file are also a problem. It would be fairly pointless to sweep away proprietary video playback plugins if you then replace them with in-browser functionality that requires a patent licence to actually include. Therefore as well as mandating that compliant browsers should be able to playback video URLs indicated by the <video> tag, the HTML5 specification originally directed that every browser should – at the very least – be able to decode the ogg theora multimedia encoding format. Theora – named after a character from Max Headroom an 80s sci-fi TV drama – is an open standard for the encoding of video which is of a similar quality to the patented H.264 MPEG4 encoding standard used in Quicktime and on many Blu-Ray High Definition video discs. Theora derives from work done by technology firm On2 who have granted a worldwide royalty-free licence to anyone who wishes to incorporate theora encoding and decoding functionality into their products. The software for actually doing the encoding and decoding is released under the open source BSD licence. It all sounds great I’m sure you’ll agree – patent-free video (and audio – ogg has a project called vorbis that handles that) playing right in your browser and no-one has to install a plugin or pay a patent licence.

 Unfortunately Apple and Nokia – companies that would be creating HTML5 browsers in the future – lobbied successfully to have the theora/vorbis mandate removed. Nokia puzzlingly claimed(pdf) that theora was proprietary, and less puzzlingly pointed out that the format had no accompanying Digital Rights Management implementation that might help providers make money from their content. Apple argued that although the On2 patents in theora were licensed royalty-free, there was no guarantee that there were not other video-related patents out there that might be infringed upon by theora (particularly submarine patents – meaning patents that have yet to be fully published for administrative reasons but which it is still possible to inadvertently infringe). Apple also claimed that there were few-if-any hardware implementations of theora decoders, meaning that low-powered devices like mobile phones could not incorporate a specialised decoding chip to take the pressure of video work off their overworked central processors and sagging batteries. Open web enthusiasts pointed out that no video format is free of submarine patent concerns, and mandating theora in HTML5 would almost certainly mean that there soon would be theora decoding hardware available. Some uncharitable commentators also pointed out that Apple held one of the essential patents for MPEG4 decoding, and so stood to make money from additional licence sales if MPEG4 became a common format for the contents of the HTML5 <video> tag. 

So the issue was already a vexed one when last week Google announced on the WHATWG mailing list that their support for the <video> tag in version 3 of their browser Google Chrome was going to use LGPLv2.1-licensed free software video library ffmpeg to decode both theora and MPEG4 H.264. Why was this controversial? Well as I mentioned above, H.264 is subject to a whole cupboard-load of patents, and anyone who looks like they have a bit of money would be well advised to get a comprehensive licence from the relevant group or be prepared for a writ on the corporate doormat one morning. Clearly anyone with a pocket-book the size of Google’s would have taken this essential step. However even doing this might well not allow you to distribute ffmpeg safely. The LGPLv2.1 – like the GPLv2 – contains a clause which aims to prevent the software it covers becoming subject to additional responsibilities and fees. This clause (section 11) reads: 

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 wit
h 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. 

Battle Ended – Smoke Not Clearing

Published by Rowan Wilson on May 1, 2009 in Business and Legal. 0 Comments

As we mentioned back in February, Microsoft has sued Dutch GPS device and software manufacturer Tomtom over – among other things – Tomtom’s use of GNU Linux; specifically a Microsoft-developed file-system component within GNU/Linux,  FAT. In our previous post we speculated that the Open Invention Network might play a role in this drama and indeed on the 23rd March, a few days after they countersued Microsoft over Microsoft’s alleged implementation of Tomtom patents in their  own products, Tomtom became a member of the OIN family. A week later, Tomtom and Microsoft announced that they were settling their disputes. Unfortunately the detail of the settlement is not public, beyond the information in the Microsoft announcement. Of greatest interest to the free and open source software community is precisely how the deal interacts with Tomtom’s responsibilities under their licence to distribute GNU/Linux, the GNU General Public License (GPL) v2. Section 7 of the GPL has this to say:

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.

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.