Software patents and free software

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Opposition to software patents is widespread in the free software community. In response, various mechanisms have been tried to defuse patents involving software. Some with a degree of success, others have met with debate and derision. These mechanisms highlight the view among vocal anti-"software patent" campaigners that the software patent debate is a black and white issue and that any patent involving or that might cover software is, without question, bad.^[1]

1 Positions from the community
2 Benefits of free software
3 Problems for free software
4 Patent retaliation
5 Patent pools
6 References
7 See also
8 External links

[edit] Positions from the community

Community leaders such as Richard Stallman^[2], Alan Cox^[3], and Bruce Perens^[4], and companies such as Red Hat^[5] and MySQL^[6], and community groups such as FSFE^[7], IFSO^[8], and others have worked to raise awareness of the problems of software patents for free software.

Other visible community figures have also condemned software patents. Linus Torvalds is one example, and while he did not get involved in the campaign against software patents, he did put his name to a joint letter with Alan Cox against software patents.^[9]

[edit] Benefits of free software

Patent holders can require infringers of their patents to pay a fee for ongoing use of their patent, or to stop using the idea covered by the patent software i.e. stop using the software that used the patented idea. With free software, software users have the additional option of removing the patented feature from the software, allowing them to continue using of the software.^{[citation needed]} This would not, however, prevent a free software user from having to pay damages for past infringement of the patent.

[edit] Problems for free software

It is quite common for patent holders to licence their patents in a way that requires a per-copy fee, however, obtaining such a licence is not possible for free software projects since requiring mandatory royalties would restrict distribution to royalty payers, violating the free software definition. A patent licence that is royalty-free, or provides a one-time worldwide payment are acceptable.

The GNU General Public License forbids software patents to be enforced on a software package under the GNU GPL, unless the patent license would "permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you". Failure to preserve software freedoms or comply with the GNU GPL results in that party's right to distribute the software at all. The GNU GPL continues:

It is not the purpose of this section to induce you to infringe any patents or other property right claims or to contest validity of any such claims; this section has the sole purpose of protecting the integrity of the free software distribution system, which is implemented by public license practices. Many people have made generous contributions to the wide range of software distributed through that system in reliance on consistent application of that system; it is up to the author/donor to decide if he or she is willing to distribute software through any other system and a licensee cannot impose that choice.

[edit] Patent retaliation

"Patent retaliation" clauses are included in several free software licences, including drafts of version 3 of the GNU General Public License (GPL). The goal of these clauses is to discourage the licensee (the user/recipient of the software) from suing the licensor (the provider/author of the software) for patent infringement by terminating the licence upon the initiation of such a lawsuit.

The Free Software Foundation included a narrow patent retaliation clause in drafts of version 3 of the GPL. The intent is to prevent users of free software from patenting their improvements upon the software, and then suing the original developers if subsequent upgrades to the free version infringe the patent.

Examples of broader clauses are those of the Apache licence and the Mozilla Public License.

[edit] Patent pools

Corporations with a vested interest in free and open source software developed a means to protect FOSS projects from the threats of patent suits by pooling patents into the Open Invention Network (OIN). The OIN is a company that acquires patents and offers them royalty free "to any company, institution or individual that agrees not to assert its patents against the Linux operating system or certain Linux-related applications".^[10]

The OIN has the Commerce One patents that cover web services, which potentially threaten anyone who uses web services. The OIN's founders intend for these patents to encourage others to join, and to discourage legal threats against Linux and Linux-related applications. Along with several other projects, Mono is listed as a covered project.

IBM, Novell, Philips, Red Hat, and Sony founded the OIN November 10 2005.