OVER the years (since 2006 when Novell paid a lip service to the EFF with some money) we have been both supportive and critical of the EFF's approach towards software patents. We last wrote about it a few days ago. Other articles on such matters include:
In December, over 3,000 of you rallied in support in support of a proposed Department of Education (ED) policy that would make ED-funded educational resources a lot more accessible to educators and students around the world.
You weren’t the only ones: the Free Software Foundation, Creative Commons, Public Knowledge, the Software Freedom Conservancy, and numerous other pro-user groups spoke up. Together, we all sent a loud message: Team Internet is on the side of open education.
Browsing through all 147 comments, a pattern quickly emerges. Open web advocates, open education groups, and many education professionals all support the idea of ED-funded resources being shared widely under open licenses (though we might quibble on a few specific details). One group kept confusing us, though: universities. Why were some universities opposing a rule that would directly benefit their students and faculty?
When you dig a bit deeper, it looks like universities’ opposition to open licensing has nothing to do with students’ access to educational resources. What’s really playing out is a longstanding fight over how universities use patents—more specifically, software patents. Open education just happens to be caught in the crossfire.
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Software Patents Ruin Everything
The AAU statement questions “whether the Department has the legal authority under 35 USC 212 to issue a requirement to openly license all computer software source code developed with grant funds.” This is a reference to a law enacted in 1980, commonly known as the Bayh-Dole Act. Before Bayh-Dole, universities couldn’t apply for patents for inventions created using federal funding; instead, the government itself was responsible for patenting federally funded inventions [.pdf]; when it did so, it would only let others use them under nonexclusive licenses.
After Bayh-Dole, a whole industry of university tech transfer offices began to appear. Each tech transfer program has its own policies—some are more flexible and friendly to the inventors’ wishes than others—but they all ostensibly exist to sell or license faculty inventions to third parties. Some of them also assert their patents directly, as the University of Wisconsin-Madison did in its recent suit against Apple.
It’s important to note here that the ED proposal doesn’t touch patents at all. Since the proposal covers software, it’s possible that grantees might want to apply for patents for a few of the works covered under the policy. But there’s nothing in the proposal to stop them from doing that: not every open source license that would comply with the policy requires that creators give up patent assertion rights.