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12.11.08

Linux Defenders: Obeying — Not Challenging — a Broken System

Posted in Deception, Europe, Finance, Free/Libre Software, GNU/Linux, Microsoft, Novell, Patents at 10:21 am by Dr. Roy Schestowitz

THOSE WHO FOLLOWED RECENT posts about this subject [1, 2, 3] already know that we are not huge fans of the “Linux Defenders” initiative; not because it’s ineffective but because it’s the wrong way to approach the problem. It is a way that pleases big companies (and funding sources) like IBM, i.e. it keeps the things IBM likes and tackles those which it does not like. IBM is, sadly enough, not opposed to software patents. It just wants to weed out the ‘nuisance’ that’s a by-product.

To address the Big Issues, one needs to spend less time pushing papers and more effort fighting Microsoft’s (and others’) expansion of software patent laws — or alternatively back doors — into more countries. The suppressors want universal consent that Microsoft owns all sorts of algorithms and that Free software therefore becomes illegitimate or “not free”.

It used to be the same with DMCA, which expanded and expanded and expanded globally. It’s about taking people’s rights away, however artificially it needs to be done. (Sheesh! Just don’t mention the ACTA [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16])

The following article about “Linux Defenders” reminds readers of the source of this push, which is tied to IBM and even Novell.

The whole setup was apparently the brainchild of the Open Invention Network (the OIN registered the linuxdefenders.org domain, in fact), which appears to be patent-friendly twin of Linux defenders. The New York University’s Center for Patent Innovation provided some of the intellectual foundations for the group, and maintains the sites devoted to patent peer review.

Overall, this seems like a lot of effort to dedicate to simply staying out of trouble but, as the SCO case demonstrated, even spurious patent claims can keep open source software (and the companies that rely on it) tied up in court for years. Unless and until the patent system is reformed, Linux Defenders appears to be a necessary protective measure.

Here is a questionable bit from Heise.

Such projects are extremely important to the long term future of open source, which by its nature is vulnerable to patent attacks. As open source grows and gains commercial acceptance, it becomes a more tempting target for patent trolls.

Well, by OIN’s own admission, this approach does not stifle patent trolls. As such, to describe “Linux Defenders” as a response to patent-trolling is totally missing the point.

Digital Majority has been very active recently because it’s keeping an eye on articles discussing the patentability of software, e.g.:

  1. Patents Act 1977: Patentability of computer programs
  2. What “as such” means, what it really, really, nearly means …

EurActiv has been peddling a lot of Microsoft-serving agenda recently. It seems to be ushering a system that would potentially contaminate EU law with the sordid chaos that's the USPTO.

Several days ago we wrote about one example (ACT, a Microsoft shill, pushing for software patent loopholes in the EU), which Glyn Moody finally comments on as well.

The ACT seems to think that the patent system works so well in the US, that Europe absolutely must ditch its own quaintly fragmented approach, and adopt a nicely unified one closer to the Stateside model.

Pity, then, that books like Patent Failure provide hundreds of pages of incontrovertible evidence that the patent system there actually costs more money – in terms of litigation – than it generates for patent holders, with the possible exception of the pharmaceutical industry (and we all know what paragons they are, especially in their licensing terms to developing countries.)

EurActiv is now offering a full interview with a known Microsoft mouthpiece [1, 2, 3, 4, 5, 6, 7, 8]. Microsoft is not even mentioned in the form of disclosure in this article and Jonathan Zuck keeps pretending to be a representative of small businesses, which he is not.

Fragmentation of the EU’s single market and particularly its patent system represent major obstacles to innovation, which is mainly driven by SMEs, Jonathan Zuck, president of an association representing more than 3,000 small and mid-sized IT firms from around the world, told EurActiv in an interview.

How many of these “3,000 small and mid-sized IT firms from around the world” actually fund Jonathan Zuck and ACT (or other shells)? On the face of it, none. This is not the first time that large businesses like Microsoft and their lobbies steal the voices of small ones.

These hired guns from ACT have even released a ‘study’ and it’s worth remembering who funds them.

There is a new page in “Worst EU Lobby Awards 2008″. ACT is not alone then.

There has been a broad discussion about his role in the debate about software patents in the European Parliament. Lehne has been one of the MEPs pushing for software patents, while Taylor Wessing has a large patent group and advises clients on patenting strategy in the software sector. Lehne has argued that he wasn’t involved with any companies engaged in the patents debate in his work as a lawyer. But still he is a partner in a law firm that boasts that its “patent group is one of the strongest, largest and best known in Europe”.

In conclusion, lobbying is to Microsoft what flying it to a bird. And it continues to this date. “Linux Defenders” is handling small potatoes whilst some big animals in the back yard are messing up with all the plantations. The “defenders” deal with grains, not crops.

In order to step up and resolve this litigious problem, people must never be led to believe that the cure lies in probing of patents one at a time while praying that laws will stay the same and hostile peers will be merciful. History is not forgiving.

Laws constantly want to be changed because companies and fortune holders always strive to elevate their level of power and control. As Richard Stallman once said, “geeks like to think that they can ignore politics, you can leave politics alone, but politics won’t leave you alone.” He also said that “fighting patents one by one will never eliminate the danger of software patents, any more than swatting mosquitoes will eliminate malaria” and, to summarise more generally, “value your freedom or you will lose it, teaches history.”

Lincoln_address 1958

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6 Comments

  1. Paul Gaskin said,

    December 11, 2008 at 2:50 pm

    Gravatar

    Roy, you’re right on point here. I feel the same way about the accumulation of software patent claims by both sides – it legitimizes a bad thing – software patents.

    Companies based on free software should be attacking the legitimacy of software patents, not filing their own.

  2. David Mohring (NZheretic) said,

    December 11, 2008 at 6:40 pm

    Gravatar

    As I answered Douglas Sorocco back in February 2006 What anti-software patent advocates want.

    Because of the existing precedent, removing software patents will require the introduction of explicit legislation. That will take time, probably many years to undo the damage from the lobbying by intellectual monopoly advocates such as yourselves.

    Until then, helping he USPTO track down prior art in publicly available open source software will greatly reduce the number of patents the software development industry will have to concern itself with.

    Richard Stallman created the GPL in part to address the extension and abuse of the copyright system by vendors. The result today is a massive body of collected work ( well over 70% of Open Source software is L/GPL’ed ) that is far too tempting for the same type of vendors not to incorporate in their own products and services. Many vendors are also finally getting their collective heads around the idea that developing in a copylefted commons can be really beneficial.

    The GPL uses the existing rights granted by copyright legislation as a double edged sword. The collective efforts under the Defend Linux project should be seen the beginnings of the forging of a new set of swords. ( see Rule #1 : vendors lending legal support )

    What Defend Linux does is indicate to any vendor or even IP troll initiating an action against a open source project will result in their entire IP portfolio is going to be put under the closest scrutiny. Given the quality of most software patents, it will act as quite a deterrent.

    That does not mean that open source projects can just ignore patents, copyrights, trademarks and EULAs. Projects such as Mono are doubly dangerous because of the possibility Microsoft can claim that re-implementations of DotNet in C# can violate Microsoft’s copyrights ( remember, unlike examples such as Unix, Posix and Java., not all of DotNet has been submitted by Microsoft as a standard ).

  3. Roy Schestowitz said,

    December 11, 2008 at 6:51 pm

    Gravatar

    I think it is still better to spend time and effort creating and empowering a coalition against software patents. It’s a group effort. In this Groklaw post (visible to members only), PJ seems to be burning out a bit, but I hope us volunteers can become louder nonetheless.

    I will hopefully publish my interview with OIN’s CEO tomorrow. It’s them who approached me and they should definitely have decent answers. I support “Linux Defenders”, but we can go beyond it. Volunteers can do better and I’m not the only one feeling this way.

  4. oiaohm said,

    December 12, 2008 at 7:05 am

    Gravatar

    Do you understand the problem factor its causing Linux development.

    http://lwn.net/Articles/308806/ KSM feature Linux Developers are bring back from the graveyard. Problem is since when it was first put forward and now Vmware now holds a patent on the issue. KSM could be delayed by years because of the Patent feature if Vmware wants to fight. Yes Linux kernel has the prior art of prior development. Problem here is that using that prior art takes time and can be disputed since it was never registered.

    Battle has to be held on many sides. Linux Defenders is doing the one section that is required. Defense filings on important features that might get shelfed for one reason or another so in future Linux world can do them without head aches.

    Now of course placing defense filings even if they don’t perfectly cover the issue if they can be shown to be linked to a prior art that does it makes disputing the age of the prior art harder. Defense filings are not black and white limits. Defense filings have more traps than someone can dream on trying to create a new patent on top of.

    We have to be able to win in the current patent system. Not just always be losing out. Of course does this mean stopping pushing for the patent system to be scrapped. Of course not.

    Also IBM does not apply patents against open source developers or uses. So yes IBM is looking at using patents as a wrecking ball against closed source development. Same reason lot of closed source development backed software patents.

    Please remember IBM is IBM. They will do anything to get profit without doing major harm. Microsoft talked about software patents as a way to crush open source. IBM is looking the other way.

    Lets see how this plays out. If IBM wrecking ball is bad enough other closed source companies might decide they have to get rid of patents to live.

    IBM plays a far better long term game than most companies. Closed source wanted software patents so IBM is going to profit from them. Who are we to argue. If people are too dumb to see that what ever they can use against open source could equally be used against them its not our problem.

    Open Source supporting companies should be embracing software patents just from the pure damage side they can do to there closed source competition. Old rule cannot beat the join them.

  5. Roy Schestowitz said,

    December 12, 2008 at 7:19 am

    Gravatar

    I am not opposed to “Linux Defenders”. It’s a fine project, but it places emphasis where patents are authorised rather than eliminated or at least challenged.

    By the way, IBM is a proprietary software company and a defender of software patents. It still successfully misleads many people, maybe thanks to marketing.

  6. oiaohm said,

    December 13, 2008 at 2:01 am

    Gravatar

    What the the best way to destroy something you don’t want Roy.

    Support it and make it hell for everyone.

    Any patent IBM holds is not a threat to open source development. They have a very clear policy on the matter. If what you are doing does not restrict them from using your application IBM have no patent claim against you.

    Yes charging money for it IBM classes as restricting.

    Even if IBM went anti software patent where would it really get us. Anti-software patent means they cannot attack closed source companies with software patents. Effectively allowing a 1 sided attack against open source. Yes Open source would lose.

    To beat software patents is a multi path attack.

    We need offensive on two fronts. 1 front inside the rules like IBM is doing making software patents too costly to support for closed source companies so they start calling for them to be destroyed. 2 front trying to get the rules changed threw political work.

    Yes you might not like IBM game plain. Really it is a effective one.

    Defensive publications of what Open Source is doing will reduce areas where patents can be taken out.

    Take a closer look at IBM. It is not a pure proprietary software company. They are Dependant on open source to sell hardware they cannot afford to see it destroyed. So yes they will defend open source they have even bought patents out right so open source projects can keep on going. Yes patents that were not for any of there current or future products.

    Of course being a commercial company profits for share holders is important. IBM basically sees software patents as a way to make money. With IBM rules against attacking open source they are really a big problem for those who think patents will destroy open source.

    If you want to develop open specification hardware you can also freely use IBM’s patents as well. There patent rules are quite simple you want secrets pay. If you don’t want secrets its free.

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