Larry, Yes but no.
Let's begin, before disagreeing, by agreeing. I haven't said that the measure represented by GPL 7 is enough; that's not a conclusion I am yet prepared to draw. Deciding how and to what extent to invoke other forms of defense against patent assertions is very important in the further development of free software licensing. I don't mean to rule out other measures; what we intend to do in GPLv3 is still uncertain. But you underestimate the problems of the patent plaintiff, and also underestimate the contribution GPL 7 makes to making those problems worse. We need to differentiate between two kinds of patent plaintiffs: roughly, Microsoft and everyone else. Everyone else wants royalties; Microsoft wants to stop free software. In fact, it is Microsoft that has people worried. But Microsoft's choices are no better than the other fellows'. We need to take both branches of the analysis. Those who want royalties don't sue independent developers because the costs of suit exceed by orders of magnitude the available gains. Those who want to stop free software don't sue independent developers because bringing thousands of Goliath v. David actions is bad public relations for a monopoly. You and I have both heard the relevant Microsoft strategist, in a confidential industry forum, disclaim any intent to sue "garage inventors." It's not trust, but an accurate estimation of the inevitable consequences, that causes me to believe her statement. So far as equitable relief goes, an injunction against the distribution of free software is useless: ask the movie industry. The studios spent more than $12 million trying to enjoin the distribution of DeCSS; they won almost every case, and the software is ubiquitous. Those who want licensing income don't need to spend money getting no royalties, and those who want to stop free software know they can't do what Jack Valenti and Michael Eisner can't do either. No, I don't think injunctions are going to be awarded in US courts against free software products in patent cases. But it's an empirical question: how many preliminary injunctions in patent cases did you see awarded in the district courts last year? That just isn't how it goes. If you want licensing revenue, suing banks, insurance companies and manufacturing firms may be a good idea, but if you're Microsoft, it's a terrible decision. Those people are your customers, and if you sue them you make them angry at you. Ain't gonna happen. And collecting royalties from those who use products infringing patents, as opposed to those who sell them, is theoretically possible, but only just. When was the last time you saw a patent-holder trying to collect royalties from consumers? May I whisper something in your ear? Most software patents are invalid. You know it, I know it, the patent-holders know it. Patent assertion in the area of software is a bluffers' game, and it works because parties cross-license rather than challenging. What GPL 7 does is to make the likelihood of challenge much higher, because the opportunities for settlement are artificially constrained. That means the patent-holder faces a different payoff matrix, and plays the game differently at the margins. There are nuances and refinements to this analysis, not all of which I want to talk about publicly, but I stand on the proposition--which is not all that strong or surprising, really--that GPL 7 has some subtle effects on the environment for potential patent claimants, and that those subtle effects have been important in preventing assertions and litigations. Which brings us to the real point: I'm not just guessing, I've been there. Even specious software patents weren't invented yesterday, and we've got a little experience with what happens when the game plays out. I can think offhand of eight GPL'd programs, three of them stalwarts of everyone's operating environment from day to day, that have been the subject of someone's intended patent holdup at one time or another. Each patent-holder presenting a claim has found that the usual "roll over and license" approach wouldn't be taken by the big boys, because of GPL 7, and each holder eventually thought better of trying to sue. I didn't learn that GPL 7 protects against patent actions by reading the license; I'm not that clever. I learnt it by watching what actually happened in the world. Now, once again, I'm not contending that more strenuous forms of defense are a bad idea. They may work; they may not. I quarrel with no one who wants to invent a better mousetrap. I simply say that our mouse-deterrer has kept the rats away so far, and it is worth a second look by those who want something practical right now. Best to all, Eben On Friday, 21 March 2003, Lawrence E. Rosen wrote: Eben, Your analysis of how the GPL might protect software from a patent threat is not realistic. You hypothesized, solely for discussion purposes, that Microsoft has a patent that reads on some portion of Linux. You suggested that Microsoft would not go after the open source programmer (his pockets are too shallow) but would go after, say, HP instead. Because of the GPL � 7, you concluded, HP would not be able to construct a private settlement but would have to defend everyone's right to practice the patent. But why would Microsoft go against HP and risk HP's funding litigation to invalidate the patent? That is not typically how such patent disputes resolve themselves. Patent holders often try to assert their claims against little guys first. That way they can get quick settlements that establish a de facto legitimacy to the patent without risking a big-bucks defense. They litigate slowly up the food chain, not down it. Alternatively, Microsoft could forget a lawsuit against HP and proceed against HP's customers directly -- the banks, insurance and manufacturing companies that infringe through their *use* of patented technology. Such companies don't usually have technology patents that they can use as bargaining chips. Also, as you well know, there is no indemnification or warranty of non-infringement in open source licenses. Merely chilling the acceptability of our software in the eyes of our customers would be a dreadful defeat for us. And why would injunctive relief not be appropriate, even against little guys? When arguably infringing software is distributed for free there is no reasonable measure of monetary damages. As you know, that is one of the criteria courts use to judge the appropriateness of injunctive relief. If you can knock out the key developers of an open source project because of the threat that they will lose their houses and their software (unrealistic though that threat might be to those of us who understand real litigation in real circumstances), wouldn't that suffice to chill the use of patented technology? I'm sorry to say that the GPL's defense against the patent threat is weaker than we can afford. We need something stronger. /Larry Rosen -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
