Re: nettime A 'licensing fee' for GNU/Linux? [2x]
Table of Contents: Re: nettime A 'licensing fee' for GNU/Linux? Frank Wales [EMAIL PROTECTED] OT! Re: nettime A 'licensing fee' for GNU/Linux? Bill Spornitz [EMAIL PROTECTED] -- Date: Fri, 13 Aug 2004 04:46:48 +0100 From: Frank Wales [EMAIL PROTECTED] Subject: Re: nettime A 'licensing fee' for GNU/Linux? On 08/12/04 19:49, Michael H Goldhaber wrote: A stupid question: what is FOSS? FSF? OSI? FOSS = Free/Open Source Software (where '/' here usually means 'and/or') FSF = Free Software Foundation http://www.fsf.org/ OSI = Open Source Initiativehttp://www.opensource.org/ HTH. HAND. (= Hope That Helps. Have A Nice Day.) - -- Frank Wales [EMAIL PROTECTED] -- Date: Thu, 12 Aug 2004 21:45:17 -0500 From: Bill Spornitz [EMAIL PROTECTED] Subject: OT! Re: nettime A 'licensing fee' for GNU/Linux? ... an interesting challenge for the meta-data-meta-engineers... build an interface where an author can acronym to h/e/i/r/s pleasure, but the topic-newbie reader still sees fully expanded proper nouns... b # distributed via nettime: no commercial use without permission # nettime is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: [EMAIL PROTECTED] and info nettime-l in the msg body # archive: http://www.nettime.org contact: [EMAIL PROTECTED]
Re: nettime A 'licensing fee' for GNU/Linux?
A stupid question: what is FOSS? FSF? OSI? this reminds me of the horrible alphabet soup I used to encounter all the time when I worked in Washington. While it may be very convenient for writers to use initials, the practice very quickly renders conversation impenetrable to those who haven't been paying enough attention to recall all the abbreviations. I urge nettimers to take the time to spell out the meanings of abbreviations frequently, if not at least once per posting. Best, Michael --- Michael H. Goldhaber [EMAIL PROTECTED] http://www.well.com/user/mgoldh/ On Aug 11, 2004, at 4:45 PM, Novica Nakov wrote: In this sense, SW patents will not kill FOSS, but they will give large companies much more leaway in determining its future, substantially hollowing out the 'freedom' in free software. Or, in a highly unlikely scenario it can go the other way. If IBM holds on to its pledge [1] not to use patents against linux, and if other companies follow extending their good will to all software that is compliant with the FSF and OSI definition than everyone will develop FOSS simply to stay clear of patent trouble and we'll have all the freedom in the world. [1] http://zdnet.com.com/2100-1104-5296787.html And another link: http://zdnet.com.com/2100-1104-870390.html - Stallman's thoughts on software patents, 2 years old. # distributed via nettime: no commercial use without permission # nettime is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: [EMAIL PROTECTED] and info nettime-l in the msg body # archive: http://www.nettime.org contact: [EMAIL PROTECTED]
Re: nettime A 'licensing fee' for GNU/Linux?
OK, let me try to restate my argument somewhat differently as to take into consideration a) the fact that software being proprietary _per se_ does not indemnify the user (Florian's point) and b) that SW patents create a mess for all programmers (Scott's point) and c) that none of us is a patent lawyer hence we don't know when patent infringement creates liability for the author and when for the user (Novica's point). The key point here is b). SW patents make the publishing of software code more difficult because they create uncertainly over IP rights. This uncertainty can be limited, but never completely eliminated, by extensive and expensive patent research. Users, for understandable reasons, don't want to be exposed to this kind of risk, so they will demand, if that is not already a standard clause in contracts, that the provider of software guarantees that he has all the rights to the software licensed. So the party which issues the license of the software will have to assume this risk. Small companies have a hard time to do this because they can neither afford to do the necessary research to be able to assess the risk realistically, nor can they afford to pay possible settlements, in case they get sued successfully. After all, how many companies could pony up more than $520 million as the result of an infringement suit? Large companies can deal with this risk for a variety of reasons. They hold many of the patents themselves; they are in cross-licensing agreements with other companies with large patent pools; they have the lawyers necessary to fight the cases and they have the reserves to pay the occasional fine as a general costs of doing business. Small companies have none of that and, this is the key point, neither have various foundations and authors of FOSS. Consequently, neither small proprietary software companies, nor FOSS communities can issues such guarantees and hence the users of their software will have to assume the risk. For users of FOSS unwilling to accept such risk -- mainly large institutional users -- there are two possibilities. One is to buy their FOSS solution from a major vendor that offers indemnification as part of the service contract (similar to a provider of proprietary software). The other is to purchase insurance (like the one offered by OSRM). Both create costs not entirely dissimilar to a licensing fee. In addition, I would speculate, that such indemnification clauses and insurances will limit the freedom of development in the future and could lead to a concentration in the SW industry, proprietary _and_ FOSS. The difference is that the proprietary SW industry is already highly concentrated, whereas the FOSS industry is usually thought of as more decentralized. In this sense, SW patents will not kill FOSS, but they will give large companies much more leaway in determining its future, substantially hollowing out the 'freedom' in free software. Felix +---+-+--- http://felix.openflows.org # distributed via nettime: no commercial use without permission # nettime is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: [EMAIL PROTECTED] and info nettime-l in the msg body # archive: http://www.nettime.org contact: [EMAIL PROTECTED]
Re: nettime A 'licensing fee' for GNU/Linux?
Felix, sorry if I sound rude, but this is not true, and you unintentionally spread FUD here! Proprietary licensing does _not_ protect customers from patent ligitation, unless the license contract explicitly states so. Software patents can be and have been enforced against users/licensees of proprietary software, too. Unisys' enforcement of the LZW/GIF patent, with its legal action against websites that used GIF images in 1999 (see http://lpf.ai.mit.edu/Patents/Gif/Gif.html) is a prominent example. Well, actually, the story of the GIF patent controversy is exactly the other way around and fits perfectly into my argument about differences between proprietary and FOSS in terms of risk exposure in the coming patent mess. Yes, Unisys did sue some people over their use of .gif files on their webpages. But the details are important here. As Mark Starr, General Patent and Technology Counsel for Unisys at the time, explained it to Slashdot if the GIFs on your Web site were created with software that is licensed by Unisys, you are fine. Nobody at Unisys is going to try to get $5000 or even $0.50 out of you. Period. [1] As he continued to explain, all of the major proprietary packages (Adobe, Corel etc) had licensed the patented technology and hence users where entitled make as many .gif images as they wanted for whatever purpose. What they were after were people who used programs that had not licensed the patents, which were mainly freeware (though sometimes this freeware was distributed as part of commercial software) and FOSS programs (though they played a minor role back then in the field of graphic design). The suspension of Munich Linux project, which was made toalarm the public about future risks for free software through software patenting in the EU, was therefore dangerously dumb shoot-yourself-into-the-foot PR which did nothing but play into the hands of the proprietary software industry. Independent of how you think about the timing and its strategic value, the problem is real and it's not going to go away by not talking about it. It seems pretty clear to me that patents will be a major weapons against FOSS and the more this becomes public knowledge, the better it is for the fight against software patents. Contrary to what Moglen preaches so eloquently, the development of technology is never straight and the FSF does not have it all figured out. Recently, a two year old memo written by someone at HP arguing that patents are the Archilles heel of FOSS has surfaced [2]. He points in particular to section 7 of the GPL [3] which explicitly forbids to distribute GPL'ed software that contains patents that require a license fees. Asked to respond to it, Eben Moglen copped out, saying that the filing of a lawsuit alleging patent infringement would not be enough to activate section 7. What he did not say was that positive court decision would! Now, is this going to be 'shutdown' FOSS? I doubt it, because major companies such as IBM and HP have invested massively into FOSS and Microsoft and others have little interest to alienate them. But it could substantially transform the social dynamics around FOSS. After all, one of the not so unintended consequences of the patent system is that it allows to form cartells without running into anti-trust issues. [1] http://slashdot.org/article.pl?sid=99/08/31/0143246 [2] http://www.newsforge.com/article.pl?sid=04/07/19/2315200 [3] http://www.gnu.org/copyleft/gpl.html +---+-+--- http://felix.openflows.org # distributed via nettime: no commercial use without permission # nettime is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: [EMAIL PROTECTED] and info nettime-l in the msg body # archive: http://www.nettime.org contact: [EMAIL PROTECTED]
Re: nettime A 'licensing fee' for GNU/Linux?
Am Samstag, 07. August 2004 um 15:35:24 Uhr (+0200) schrieb Felix Stalder: Well, actually, the story of the GIF patent controversy is exactly the oher way around and fits perfectly into my argument about differences between proprietary and FOSS in terms of risk exposure in the coming patent mess. [...] As he continued to explain, all of the major proprietary packages (Adobe Corel etc) had licensed the patented technology and hence users where entitled make as many .gif images as they wanted for whatever purpose. What they were after were people who used programs that had not licensed the patents, which were mainly freeware (though sometimes this freeware was distributed as part of commercial software) and FOSS programs (though the played a minor role back then in the field of graphic design). I still fail to follow your logic. If you used a free program like ImageMagick [which btw. already played a major role back then as a backend for server-side image generation and manipulation] or The Gimp to produce GIFs, you got sued. If you used a proprietary program [whether non-FOSS freeware or commercial] whose authors hadn't licensed LZW from Unisys, you - and not the authors - got sued, too. The proprietary license did _not_, as you wrote in your initial posting, save you, the user, from legal risks, i.e. it did _not_ ensure that the program author got sued instead of you, the user. So whether you use free or proprietary software, your risk of getting sued has nothing to do with the type of the license, but solely depends on the respective proactive care taken by the creator of the program. Adobe licensed LZW, Debian on the contrary removed GIF support in its Gimp packages to turn risk away from its users. Since there exist myriads of software patents for almost anything from one-click-orders to content management systems, no software creator and distributor (regardless whether Debian or Adobe) will ever be able to guarantee that nobody else won't sue your, the user's, ass. Welcome to the new economy of post-material capitalism! -F -- http://userpage.fu-berlin.de/~cantsin/ # distributed via nettime: no commercial use without permission # nettime is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: [EMAIL PROTECTED] and info nettime-l in the msg body # archive: http://www.nettime.org contact: [EMAIL PROTECTED]
Re: nettime A 'licensing fee' for GNU/Linux?
If you used a proprietary program [whether non-FOSS freeware or commercial] whose authors hadn't licensed LZW from Unisys, you - and not the authors - got sued, too. The proprietary license did _not_, as you wrote in your initial posting, save you, the user, from legal risks, i.e. it did _not_ ensure that the program author got sued instead of you, the user. Even if you buy an Adobe product I don't think that its EULA states that they have bought a license from Unisys for LZW. Or does it? Here is what I'm thinking. Felix wrote in his initial posting that: last August a court ruled in an exceptional case that Internet Explorer improperly contained patented technology, it was Microsoft that had to pay up $520,600,000.00. So in this case the program author got sued and paid the damages. I don't know much about legal stuff but it seems to me that there are two possibilities with patent infigment. In the IE case the users buy a product that has patent problems but they don't participate in the actual patent infigment. Microsoft is the one who has to pay since they are the ones who did something (wrote the code, designed the buttons) that infringes on a patent. In the LZW case users are the ones who who actually use some program to create a file in a format that is patented, and in that way they are the ones who mess with the patent. The developers/vendors can do something to protect their users: they can remove GIF support, pay for the patent and up the licensing fees or just simply inform the users. But the program doesn't infringe on the LZW patent by itself. The user has to do it - create a GIF image, so it somewhat logical that the user has to pay for it in some way. In this line of thinking the linux kernel is much closer to the IE example then to the LZW example, so users should be safe. But then again, it could be all wrong, and MS could have simply paid whatever price to settle the issue and protect its market share. btw, software patents suck. -- Novica # distributed via nettime: no commercial use without permission # nettime is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: [EMAIL PROTECTED] and info nettime-l in the msg body # archive: http://www.nettime.org contact: [EMAIL PROTECTED]
nettime A 'licensing fee' for GNU/Linux?
It seems like the real battle over the future of Free and Open Source Software is being fought in the area of patents, not copyright. Copyright, which protects a particular expression, is very hard to infringe upon involuntarily. Even if two people happen to have the same idea, chances are, they will express it differently. From the point of view of copyright, no harm done. Patents are different, they protect an idea, independent from its expression. If you have an idea that someone else has already patented, though luck. It's not your idea anymore. The history of technology is full of cases where two people came up with the same invention, but one was faster. Famous is the case of Alexander Graham Bell and Elisha Grey. Both filed their patents for the telephone on February 14, 1876. Bell's was the fifth entry of that day, while Gray's was the 39th. Fast forward to today. Patent offices everywhere are drowning in applications and are chronically understaffed. Once a patent has been submitted, it can take more than a year before it is reviewed, but once it has been approved, it becomes valid retroactively. In an area like software development, where product cycles counted in months, rather than years, this introduces irreducible uncertainty. There is no way of knowing what patents are in the pipeline. Combine that with the fact that complex software packages include a potentially large number of ideas that might, or might not, be patentable it becomes evident that it's essentially unknowable if there might be a patent issue hidden somewhere. This applies to all kinds of software, proprietary as well as free/open source. From a user's point of view, there is, however, a crucial differences. With proprietary software, the company from which the software is licensed assumes all responsibility and the user has no worries beyond the licensing fees. So, when last August a court ruled in an exeptional case that Internet Explorer improperly contained patented technology, it was Microsoft that had to pay up $520,600,000.00 [1]. For the users, the verdict had no relevance what so ever. The case was exceptional because usually, large corporations can settle their patent disputes by crosslicensing their patent portfolios. That makes things easy and has the nice effect of keeping others out. The case is different with Free /Open Source Software. In this case, the users are at real risk. The city of Munich realized this and, in early August, postponed their high profile switch to Linux to assess the patent risk. For the moment, they remain committed to the migration project [2]. They were afraid to suddenly receive an injunction and having to stop using their Linux machines. Chances, one might guess, are remote, but even this is unacceptable to a public administration. A few days earlier, a company called 'Open Source Risk Management' [3], which has Bruce Perens as one of its board members, issued a report warning that the Linux Kernel potentially infringes on 283 patents. Of these only 98 are owned by companies currently friendly to Linux, including 60 from IBM, 20 from Hewlett-Packard and 11 from Intel. This warning was not entirely disinterested, since OSRM will soon begin to sell insurances. The prices, as announced so far, are $150,000.00 per year and this protects against settlement costs of up to $ 5,000,000 [4]. In a similar vein, large Linux sellers such as IBM and HP offer indemnity clauses as part of their Linux deals (in the context of the SCO cause). It's not a big leap of imagination to see the explicit costs of an insurance, or the implicit costs of an indemnification clause as part of a service contract, as a kind of 'licensing fee' for Linux. And like other licensing contracts, they could introduce serious restrictions that work perfectly well on top of GPL code. In HP's case, for example, the indemnification only applies to Linux run on HP hardware. In case of OSRM, one must assume that there will be limits to the kinds of modifications one is allowed to do to the software. Perhaps there will be a list of approved modules one may to compile into the kernel under the terms of the insurance. In some way or another, OSRM will have to define what code exactly the insurance covers. While this kind of patent risk is unlikely to hit the end user directly, it might turn into a major issue for institutional users who are vital in helping Linux break out of its current niche. If anything, this problem is going to get worse. At the end of July, Microsoft announced that it plans to file 3000 patents this year. This would be a significant increase over the 2000 patents it filed last year and the 1000 patents filed just a few years ago. No wonder Bill Gates says that this is something that we are pretty excited (about).[5] [1] http://www.ucop.edu/news/archives/2003/aug11art1.htm [2] http://www.muenchen.de/Rathaus/bb_dir/presse/2004/08/
Re: nettime A 'licensing fee' for GNU/Linux?
Am Freitag, 06. August 2004 um 23:44:53 Uhr (+0200) schrieb Felix Stalder: This applies to all kinds of software, proprietary as well as free/open source. From a user's point of view, there is, however, a crucial differences. With proprietary software, the company from which the software is licensed assumes all responsibility and the user has no worries beyond the licensing fees. Felix, sorry if I sound rude, but this is not true, and you unintentionally spread FUD here! Proprietary licensing does _not_ protect customers from patent ligitation, unless the license contract explicitly states so. Software patents can be and have been enforced against users/licensees of proprietary software, too. Unisys' enforcement of the LZW/GIF patent, with its legal action against websites that used GIF images in 1999 (see http://lpf.ai.mit.edu/Patents/Gif/Gif.html) is a prominent example. The suspension of Munich Linux project, which was made to alarm the public about future risks for free software through software patenting in the EU, was therefore dangerously dumb shoot-yourself-into-the-foot PR which did nothing but play into the hands of the proprietary software industry. -F http://userpage.fu-berlin.de/~cantsin/ # distributed via nettime: no commercial use without permission # nettime is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: [EMAIL PROTECTED] and info nettime-l in the msg body # archive: http://www.nettime.org contact: [EMAIL PROTECTED]
