posted
IBM has pledged to make 500 of its patents available for use by Open Source projects (and these aren't merely the old outdated ones, a quick perusal shows many highly relevant ones; they mainly reflect that IBM is easing itself out of the commercial software creation and sales business).
This is a huge step, particularly as it reinforces IBMs already stated intent to throw its patent portfolio behind Open Source re: litigation (which is a much less risky move for them as it doesn't let so many people use their patents, just says that if someone tries to use patents against OSS IBM may use their patents against that entity).
posted
I read that earlier today. Have they specified details such as which license they'll release them under, etc.?
Posts: 26071 | Registered: Oct 2003
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Dag, I'm not sure what you mean exactly by license in this sense, but in this case IBM is making what they intend to be a legally binding pledge (as they state in the PDF). The pledge (and some surrounding detail):
quote: IBM's Legally Binding Commitment Not To Assert the 500 Named Patents Against OSS
The pledge will benefit any Open Source Software. Open Source Software is any computer software program whose source code is published and available for inspection and use by anyone, and is made available under a license agreement that permits recipients to copy, modify and distribute the program’s source code without payment of fees or royalties. All licenses certified by opensource.org and listed on their website as of 01/11/2005 are Open Source Software licenses for the purpose of this pledge.
Subject to the exception provided below, and with the intent that developers, users and distributors of Open Source Software rely on our promise, IBM hereby commits not to assert any of the 500 U.S. patents listed above, as well as all counterparts of these patents issued in other countries against the development, use or distribution of Open Source Software.
In order to foster innovation and avoid the possibility that a party will take advantage of this pledge and then assert patents or other intellectual property rights of its own against Open Source Software, thereby limiting the freedom of IBM or any other Open Source Software developer to create innovative software programs, or the freedom of others to distribute and use Open Source Software, the commitment not to assert any of these 500 U.S. patents and all counterparts of these patents issued in other countries is irrevocable except that IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software.
Basically, so long as you don't sue about IP rights in Open Source Software, you get to use IBM's patents in OSS. The pledge seems to state that the definition of OSS used is the OSI's, but its not an if and only if statement, just an if (if it uses an OSI license, it is Open Source), giving IBM leave to expand that definition.
Posts: 15770 | Registered: Dec 2001
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posted
And while I know you're joking, OSS is much more of a capitalistic practice than copyrights and patents are.
Posts: 15770 | Registered: Dec 2001
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posted
Oooh. That'll be the root of a fun first-year contracts case on the enforceability of gratuitous promises one day.
It's not a license to use the patent, it's a promise not to sue if they infringe. Interesting legal beast.
Really, my question just meant which OSS licenses are covered, which the quotation answers nicely.
But the legal ramifications are very interesting. The reason these things often end up in court is when a successor entity takes title to the property, such as when a company is in receivership or being liquidated.
quote:In IBM's case, I'm not terribly worried for the forseeable future re: liquidation or merger.
True. But suppose Developer Y makes a product covered by one of these patents and offers it under the GPL. Company X uses the product (maybe even pays something for it). If IBM asserts a patent against Company X for use of the product because Company X has asserted patent rights against someone else, then Company X may be able to make a claim against Developer Y.
Around and around she goes, where she stops, nobody knows!
posted
Um, doubtless because he is a guy and it means something to him besides actually loving him a 800 lb. gorilla.
Posts: 666 | Registered: Dec 2003
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quote: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, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.
So in accepting the GPL for distribution purposes, Company X has agreed not to distribute it if they get in a patent tiff with IBM.
Though that does create an interesting reaction because, if anyone is forbidden from distributing GPL'd software, by that clause nobody can distribute GPL'd software.
I think that wording needs to be cleaned up considerably, as there are plenty of reasons one could be legally unable to distribute GPL'd software.
Though actually, that's just a problem with the wording of the "for example" bit, which is I believe a slightly incorrect interpretation (or is just too imprecise).
The first statement I mde after the qute seems to be true.
Posts: 15770 | Registered: Dec 2001
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quote:So in accepting the GPL for distribution purposes, Company X has agreed not to distribute it if they get in a patent tiff with IBM.
No, no. I didn't mean Company X was distributing the software at all. Suppose they were using it internally only. IBM can still go after them for patent infringement, and Company X could still possibly go after the person or entity who distributed the software to them.
quote:Though that does create an interesting reaction because, if anyone is forbidden from distributing GPL'd software, by that clause nobody can distribute GPL'd software.
I think that wording needs to be cleaned up considerably, as there are plenty of reasons one could be legally unable to distribute GPL'd software.
Though actually, that's just a problem with the wording of the "for example" bit, which is I believe a slightly incorrect interpretation (or is just too imprecise).
I think the example would be binding - it's based on a clear interpretation of the restrictive clause, so courts would likely use it in interpreting the document.
This stuff is wildly untested in court so far. No one really knows how it will actually be interpreted once various courts reach a semi-consensus.
posted
Perhaps, but it would only be, I think, of the distributor had either sold it to them or otherwise offered a guarantee (and I would hope smart people writing such a guarantee would include phrasing which says if a company attempts to enforce patent rights against OSS the guarantee is null and void). The GPL also includes the following:
quote: NO WARRANTY
11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
12. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
posted
I don't think that will cover it. Certainly, it won't be dispositive and will be extensively litigated if it is.
This isn't a damage caused by the program, but by the permissions relied on by the user of the software. There are estoppel arguments that can be made six ways to Sunday on this.
By the way, this is a purely intellectual exercise for me - I've got no ax to grind. I love issues like this one, with great legal arguments to be made on both sides. The trick in litigating it would be figuring out how to present a united view of contract and IP to the judge and fitting your case neatly into it.
Stepping in that direction, I wonder what sort of argument I'd make. Well, the one I'd most like to make is that patents on software and business methods were horrible ideas in the first place, of course.
Somewhat more realistically, I might argue that patents are an extension of the government's right to exclude to patent holders and licensees (which are really just partial patent holders, by the patent office's interpretation). As not knowing about a patent isn't reason for . . . actually, this leads to a good line of thinking.
Whenever OSS uses one of those IBM patents, put a sticker (notice in a file, whatever) that the software uses patent XXX but that the distributor is not a licensee (and thus extending rights/indemnification to the purchaser), but is merely taking advantage of IBM's pledge not to enforce, and that companies wishing to use the software need to watch out for that themselves.
Posts: 15770 | Registered: Dec 2001
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quote: they mainly reflect that IBM is easing itself out of the commercial software creation and sales business).
Is this accurate? If I am reading what is happening correctly, IBM isn't saying that it can't sell its software for money. It's saying that other people can't sell its software/patents for money.
So, I think what it is happening here is that IBM is getting a bunch of free research and debugging from people that it can then use for its own financial gain.
Far from this signalling that IBM wants to get out of the commercial software market, I think this signals that IBM is looking to make itself more competitive in the software market.
I do not see anything wrong with this and think it's a smart move on IBM's part.
Posts: 13123 | Registered: Feb 2002
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posted
I think it's a great move for IBM. Realistically, IBM couldn't hope to recover much from most OSS developers. The ones most likely to have recoverable assets are those most likely to assert patents against other OSS projects. It buys them great publicity, gives them the free research, possibly encourages others to do the same.
posted
IBM is moving out of the commercial software creation and sales business with a vengeance, yes (where by commercial software I'm meaning software that's sold, possibly with support, but the focus is on the software).
IBM has been undergoing a huge restructuring over the past with years that refocuses on their consulting and high end hardware sales (which are driven by their consulting). They still make tons of software, but they treat it as a commodity product for their consulting, which is why they're connecting up with Open Source so much -- Open Source isn't competing, Open Source is a resource and motivator for IBM's new business strategy.
And of course, IBM is milking that software they can still sell.
You know, part of IBM's strength is that its remarkably unified for a large company. Interesting, I wonder what leads to that. Could be the subject of a very interesting political economy/social informatics paper.
Posts: 15770 | Registered: Dec 2001
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IBM's donating this slew of patents for use in the public domain, with the idea that they are encouraging other companies to open thier patent stables in the same way. I'm skeptical this kind of high profile gesture, given the market on business method patents these days.
It's not like software is really "intellectual" property, anyway.
posted
It is an interesting thought. If IBM is moving toward making most or all of its software revenue from consulting, not licensing, then business process patents might be more valuable to them anyway.
And just ask Microsoft or that little company that claims to be entitled to a license on all browser plug-ins how software isn't real intellectual property.
posted
re: "intellectual property" or "intellectual" property.
Sure, Microsoft can buy any number of patents, and has, as we say, intellectual property.
But I don't think it rises to the level of Tess D'Ubervilles. Seriously, both of them are just a series of letters arranged to certain effect. But only one of them showcases the tragedy of the human struggle. On purpose, anyway.
Posts: 516 | Registered: Aug 2004
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posted
The government certainly considers software intellectual property, and so do I. For instance, I'm fine with software copyrights (though I think they're often granted with insufficient examination). The government just thinks software is a different sort of intellectual property than I do; I think software patents are silly, and business method patents. Patents are intended to be a protection on a concrete thing which fosters innovation among those who cannot necessarily afford to implement.
Any software which can be sufficiently described, though, for the purposes of a software patent, may be implemented by that person for comparatively few additional resources, removing it from the original intended realm of purpose for patents.
Posts: 15770 | Registered: Dec 2001
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posted
Overrated? Thomas Hardy? You must be joking.
Robin Cook, Thomas Clancy, James Patterson and that ilk are fine examples of what I am talking about, I am sure--having never read them myself--being more widgetry than artistry.
Did you have a point?
Posts: 516 | Registered: Aug 2004
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posted
By the by, fugu, the government should not be one's sole arbiter of what's IP and what isn't. Several years ago the Patent and Trademark Office publicly poo-poo'ed business method patents, which is a really good umbrella term for the patents being donated by IBM. They're essentially giving away patents that are dead meat anyway. Since the PTO's pronouncement, alot of companies have been trying to offload that stuff to anyone dumb enough to fall for it. I unfortunately used to work with such naive, lost-in-the-woods types of people who believe everything IBM tells them.
It's a public relations move, in its entirety, I assure you.
Posts: 516 | Registered: Aug 2004
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posted
None of the patents that I notice are business method patents, they all look like software patents to me, and were granted
Also, I clearly don't let the government tell me what is IP, I do, however, let them tell me what's legally IP. As, y'know, what the government (in a large and nebulous sense) says is legally IP is what is legally IP.
And considering there have been several multi-million dollar payouts lately in patent suits, I rather think you're just plain wrong on most of it.
Posts: 15770 | Registered: Dec 2001
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quote:Robin Cook, Thomas Clancy, James Patterson and that ilk are fine examples of what I am talking about, I am sure--having never read them myself--being more widgetry than artistry.
Did you have a point?
Only that clearly the "intellectual" property nature of a work is unrelated to the "intellectual property" nature of that same work.
Which you've basically conceded, unless you're denying that Clancy received a copyright for "Sum of All Fears." So I assume you actually got the point.
Edit: fugu, as real as those patents are, I'd bet money IBM would never have pursued them against OSS developers. And they've lost none of their right to pursue them against anyone else. So essentially they gave up nothing. And that's assuming the promise is at all enforceable, which I find highly doubtful.
posted
As far as the "would they have used them?" I tend to agree they would have not. However, I tend to disagree with the "its just public relations" line, in specific the "just" part (I realize you weren't making it). Public relations is, in the long run, most of what makes a company successful. In that sense, IBM is losing something, though its very unclear what, and gaining something, which is also unclear, but the sum of the two is the alteration in peoples' perceptions of them.
As for whether or not the pledge is enforceable . . . I bet it wouldn't actually be all that hard to find a judge who considered it to constitute a sort of (enforceable) license. Of course, the trick would be finding a judge you could maneuver to preside over the proceedings who thought that .
Posts: 15770 | Registered: Dec 2001
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posted
Public relations is never "just" public relations, especially for IBM. At least part of what they sell is mystique.
If I were an OSS developer and one of these patents came up, I'd put a disclaimer in the code and the license saying, "Portions of the Software use inventions patented by IBM. IBM has issued the following statement concerning its intentions with regard to enforcing these patents: <statement> The developer and all distributors of the Software are relying on this statement, and disclaim" yada yada yada.
posted
Yeah, that's pretty much what I suggest above. I think it would likely be adequate legal protection.
Posts: 15770 | Registered: Dec 2001
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posted
1) Business method patents can include software patents.
2) My point re "intellectual" property versus "intellectual property" is not conceded in the least. It's a crucial distinction, as the granting of a patent creates extraordinary power. That power is monopoly, essentially, the power to exclude others from practicing your invention. In a fair system, this great power is given to an inventor because we want to reward innovation under our Constitution's Article 1, Section 8, which provides that "The Congress shall have power . . . To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
For example, if I create a piece of software that manages e-commerce in a certain way (likely a business method patent), I have the power to force another person to stop using technology that falls within the claims of my issued patent. This can mean that I not only stop someone from using my software, or something that does the same thing as my software.
My point is simply that the "intellectual" part of intellectual property cannot be left out of a legal framework that fairly rewards inventors for thier labors and allows society to benefit from inventions--hence the "limited time" requirement. This is also the PTO's point. When the PTO reviews a business method, it reviews the application more strigently because of concerns about novelty and non-obviousness--two factors that are legal measurements for whether a patent is, roughly put, innovative enough to be granted.
If IBM's looking to donate IP to the public, the correct outcome should be that the public has real power as a result of that donation. Many criticized the granting of patents on business methods during the period of thier popularity (see 1-click ordering) and I believe that IBM's "generosity" is really compelling evidence that the darn things had no business being called IP in the first place.
posted
Except IBM is not donating IP to the public at all.
Furthermore, IBM would be free to do this regardless of how valuable the IP was. Its the patent holder's prerogative to sue or not sue.
Generally speaking I think you and I would agree that patents are granted too readily on software; that is, if its showing up all over the place it shouldn't be patentable. In fact, I don't think any of it should be patentable.
However, many of the patents IBM is making available, particularly those regarding databases (several of which I read through, and that's the section I understand most overall) are not particularly trivial.
Posts: 15770 | Registered: Dec 2001
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posted
First, IBM is not donating the patents to anyone, they are giving a large group of people a pseudo-license on the patents. Second, the group of people, while it could theoretically involve anybody, most certainly does not. It involves a small subset of the public involved in very specific efforts which are non-trivially related to the nature of the patents being made available. At best this could be considered a donation to those people, and as before noted its not really a donation (particularly as there's a non-trivial exception, making it in a very real sense an exchange: IBM doesn't use its patents against you, you don't use your patents (or other IP) against open source (which community IBM is a very active part in, and I'd bet IBM is at least using, somewhere, pretty much any OSS that might be sued over)).
And even if one did contribute something to the public as a whole, that act does not negate the value thereof. For instance, were I to come up with a device which created energy at unheard of efficiencies, patented it, and then granted an unlimited license to every person on the planet (because I'm a nice guy), it would both have value and still be donated to everyone.
I think there may be two (or three) senses business method patent is being used here. There are business method patents in the sense they are allowed in under the court decision that allowed business method patents; however, most software patents (including the ones I perused in this instance) could only be called "business methods" by a considerable stretch of the imagination from what the common conception of a 'business method' would be.
Going back more to the subject of the first paragraph, you allege that as the patents have no real value in terms of effective licensing (to the receiving OSS developers), they should not have been patents in the first place. While I agree with the last part, the whole is not necessarily true. For instance, a patent might be useful to a particularly large firm, or for some reason more to closed source firms. In such a case, the patent considered abstractly would still be a valuable patent, it would just be these pseudo-licenses that had no particular value to them (which is certainly possible, at least from the perspective of the value of the pseudo-license itself).
On that subject, I think you're approaching the subject of value wrong. Yes, the likelihood of IBM taking out a patent claim involving one of these patents in the first place is essentially nil, however, the research involved in discovering that fact would be both beyond the ken of most OSS developers and increase the damages they would later owe were the fact discovered and a suit filed. Now OSS developers not only know they can use these patents, but they have a reasonable security in going to the patent for implementing it in their software, something which in almost all software firms is completely forbidden (except in the case of the firm's own patents) for the liability reason. That's valuable, particularly for the medium to large OSS producers.
Another thing of value (at least to OSS developers) is that this constitutes a threat to potential IP holders who might sue someone using OSS (as a company, luckily one with an abysmal case, has already done). That IBM will seriously consider leveraging their patent portfolio against someone taking such an action is extremely valuable.
Just from a public relations viewpoint, as of late the waters have been choppy over OSS and patents, in part due to the aforementioned SCO suit, which while in particulars is laughable in abstract represents potential concern as Linux and other OSS wields more and more market share. By publishing this pledge, IBM will (already has, in fact) considerably calm the waters. This is the sort of thing that PHBs (Pointy Haired Bosses) read and go "oh, if IBM's protecting it, I guess I don't need to worry about those SCO people after all".
I have more, but I should go to sleep .
Posts: 15770 | Registered: Dec 2001
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I looked at the list, and noted that many of them were described as "Method for", "Menu for" or "system for" or began with an infinitive (ie "Indexing"). Even under the database heading this was the case. Although I am not a patent attorney, I'm willing to say that the bulk of these patents are methods that IBM would have a very difficult (read expensive) time enforcing in court. Given the PTO's recent decision to hold methods to a higher level of scrutiny, I'm willing to say that IBM's promise not to enforce these patents against OSS users is just a reflection of thier actual value.
It's a good move in that IBM's decision eliminates the possibility of working an inequity on OSS users, and could encourage a trend among larger companies to refrain from squelching the little guys for stupidity's sake.
But you've made a really good point--IBM's not "donating" these patents to the public. They are retaining ownership to them while offering this "legally enforceable pledge" to the OSS community. The upshot here is that may have retained the ability to claim the pledged patents as assets, or rights to assert their claims against other companies.
So you're right--it's not pure PR--there's a high likelihood of some good, sound tax strategy in there, too. I'll modify my prior assessment--it's not pure PR, just pure self interest on the part of IBM.
posted
But they receive those tax benefits whether or not they perform this action. If we're working under rational choice theory, that means they must receive some other benefit or else they would not take this action.
edit: that is, the PR must be of fairly significant benefit or else they wouldn't have taken the time to comb through their patents to such a degree.
posted
They are having thier cake and eating it, too. In addition, they've taken our cake out of the public domain, and then handed it back to us with a ribbon on it.
posted
Oh, no disagreement there. As far as I'm concerned, business process and software patents should not exist.
Posts: 15770 | Registered: Dec 2001
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quote:SANTA CLARA, Calif. - January 25, 2005 - Sun Microsystems, Inc. [NASDAQ: SUNW] today announced the largest single release of patent innovations into the open source community by any organization to date, marking a significant shift in the way Sun positions its intellectual property portfolio. By giving open source developers free access to Sun OpenSolaris related patents under the Common Development and Distribution License (CDDL), the company is fostering open innovation and establishing a leadership role in the framework of a patent commons that will be recognized across the globe.
Seems much less frought with possible legal peril than IBM's promise not to enforce, too.
Yes in that this is much more than an implied Patent allowance, this is a patent license (well, part of it is a patent license). Here's some relevant stuff, extra stuff deleted:
quote:2. License Grants.
2.1. The Initial Developer Grant.
Conditioned upon Your compliance with Section 3.1 below and subject to third party intellectual property claims, the Initial Developer hereby grants You a world-wide, royalty-free, non-exclusive license:
...
(b) under Patent Claims infringed by the making, using or selling of Original Software, to make, have made, use, practice, sell, and offer for sale, and/or otherwise dispose of the Original Software (or portions thereof).
(c) The licenses granted in Sections 2.1(a) and (b) are effective on the date Initial Developer first distributes or otherwise makes the Original Software available to a third party under the terms of this License.
(d) Notwithstanding Section 2.1(b) above, no patent license is granted: (1) for code that You delete from the Original Software, or (2) for infringements caused by: (i) the modification of the Original Software, or (ii) the combination of the Original Software with other software or devices.
2.2. Contributor Grant.
Conditioned upon Your compliance with Section 3.1 below and subject to third party intellectual property claims, each Contributor hereby grants You a world-wide, royalty-free, non-exclusive license:
...
(b) under Patent Claims infringed by the making, using, or selling of Modifications made by that Contributor either alone and/or in combination with its Contributor Version (or portions of such combination), to make, use, sell, offer for sale, have made, and/or otherwise dispose of: (1) Modifications made by that Contributor (or portions thereof); and (2) the combination of Modifications made by that Contributor with its Contributor Version (or portions of such combination).
(c) The licenses granted in Sections 2.2(a) and 2.2(b) are effective on the date Contributor first distributes or otherwise makes the Modifications available to a third party.
(d) Notwithstanding Section 2.2(b) above, no patent license is granted: (1) for any code that Contributor has deleted from the Contributor Version; (2) for infringements caused by: (i) third party modifications of Contributor Version, or (ii) the combination of Modifications made by that Contributor with other software (except as part of the Contributor Version) or other devices; or (3) under Patent Claims infringed by Covered Software in the absence of Modifications made by that Contributor.
3.1 is the section that says you need to distribute source code, and distribute it with this license.
However, this leads us to the No.
No in that this is not a license for open source developers, considered generally, to use these patents. Only developers which distribute their software under this license (and possibly based on this software, though what constitutes "based on" likely includes "implementing patents by looking at how this software implements said patents") get the use of the patents.
This is problematic for one primary reason: the license is almost certainly not GPL compatible.
Another problematic area is that to distribute software under this license you must forfeit your own patent rights involved in that software . . . not necessarily wholly a bad thing, but certainly even more restrictive than IBMs grant.
Posts: 15770 | Registered: Dec 2001
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posted
Ah, I note that the license also contains a patent peace provision, but only to protect contributors to the software being licensed, not all open source licenses.
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