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Opposition to software patents is widespread in the free software community. In response, various mechanisms have been tried to defuse the perceived problem.
Community leaders such as Richard Stallman, [1] Alan Cox, [2] Bruce Perens, [3] and Linus Torvalds; [4] [5] companies such as Red Hat [6] and MySQL; [7] and community groups such as FSFE [8] and IFSO [9] all believe that patents cause problems for free software.
Leading open-source figures and companies [10] have complained that software patents are overly broad and the USPTO should reject most of them. Bill Gates has said "If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today". [11]
Free software projects cannot agree to patent licences that include any kind of per-copy fee. No matter how low the fee is, there is no way for a free software distributor to know how many copies are being made. Also, adding any requirements to pay or to notify someone each time a copy is made would make the software no longer free software. [12]
A patent licence that is royalty-free, or provides a one-time worldwide payment is acceptable. Version 2 of the GNU General Public License does not allow software to be distributed if that software requires a patent licence that does not "permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you". [13]
The Version 2 of the GNU General Public License [14] of 1991 also says that patents convert free software to proprietary software:
"Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all."
In 2004, Open Source Risk Management commissioned a patent study, carried out by Dan Ravicher. For this study, Ravicher performed patent searches to estimate the patent-risk of the Linux kernel: [15]
In conclusion, he found that no court-validated software patent is infringed by the Linux kernel. However, Ravicher also found 283 issued but not yet court-validated software patents that, if upheld as valid by the courts, could potentially be used to support patent claims against Linux.
However, Mark Webbink, who was Red Hat's Deputy General Counsel, said that Ravicher did not deduce the kernel to infringe any of said patents. [16]
"Patent retaliation" clauses are included in several free software licenses. The goal of these clauses is to create a penalty so as 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 license upon the initiation of such a lawsuit.
The Free Software Foundation included a narrow patent retaliation clause in drafts 1 and 2 of version 3 of the GPL, however, this clause was removed in draft 3 as its enforceability and effectiveness was decided to be too dubious to be worth the added complexity. [17]
Examples of broader clauses are those of the Apache License and the Mozilla Public License.
In 2005, IBM, Novell, Philips, Red Hat, and Sony founded the Open Invention Network (OIN). 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". [18]
Novell donated the valuable Commerce One web services patents to OIN. These potentially threaten anyone who uses web services. 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.
Movements have formed to lobby against the existence and enforceability of software patents. The earliest was the League for Programming Freedom in the USA. Probably the most successful was the anti-software-patent campaign in Europe that resulted in the rejection by the European Parliament of the Proposed directive on the patentability of computer-implemented inventions which, the free software community argues, would have made software patents enforceable in the European Union. A fledgling movement also exists in South Africa. [19]
Some software companies who hold significant patent portfolios have made non-aggression pledges to the free software community. These have varied in scope and have received a variety of responses. IBM, [20] Sun, and Nokia [21] are three examples. These have been described by Richard Stallman as "significant", "not really anything", and "next to nothing", respectively. [22]
Microsoft has irrevocably pledged not to assert any claims against open source developers [23] which CEO Steve Ballmer called "an important step and significant change in how we share information about our products and technologies." [24] This pledge has been accepted with some skepticism. [25]
Microsoft has claimed that free software such as OpenOffice.org and the Linux kernel violate 235 Microsoft patents and said that it will seek licence fees, [26] but has so far failed to disclose which patents they may violate. However, the 2009 lawsuit against TomTom involved the use of Microsoft's patents for long filenames on FAT filesystems, the code for which was in the Linux kernel, not in any TomTom-developed software. [27] The Linux kernel developers subsequently worked around it. [28]
In 2011 a company called Bedrock Technologies LLC won a judgment of $5 million against Google for use of the Linux kernel, which the court found to violate US patent 5,893,120 (which was filed in 1997 and issued in 1999, and covers techniques for software caches likely used in every modern operating system). Bedrock went on to sue Yahoo and lost; Yahoo's defense amounted to the use of a different version of Linux which did not execute the particular code that Bedrock had pointed out as infringing, [29] but the Yahoo case did not invalidate Bedrock's patent. [30] Details of exactly which code Bedrock said infringed the patent and how Yahoo managed to avoid executing that code are not publicly available.
In January 2008, Trend Micro accused Barracuda Networks of patent infringement for distribution of the ClamAV anti-virus software. [31] [32]
In November 2006, a highly controversial agreement was made between Novell and Microsoft that included patent licensing. [33] This led to much criticism of Novell by the free software community. [34]
In June 2007, Xandros announced a similar deal. [35] [36] [37]
On June 13, 2007, a deal was reached between Microsoft and Linspire. [38] In return, Linspire would change its default search engine from Google to Live search. [39]
Ubuntu founder and director Mark Shuttleworth has said that Ubuntu will not be making any such deal, [40] as have Red Hat. [41] These have been joined by a weaker statement from Mandriva [42] that "we don’t believe it is necessary for us to get protection from Microsoft".
In October 2007, IP Innovation LLC, a company specialized in patent-protection, filed a suit for patent infringement against Red Hat and Novell. [43] [44] [45] However, IP Innovation LLC is a subsidiary of a company classified by some as a patent troll, [46] and commentators suspect a strong connection between this company and Microsoft. [43] [44] In 2010, IP Innovation lost the suit. [47]
In December 2007, Microsoft granted the Samba project access to certain proprietary documents and must maintain a list of related patents for a one-time fee of 10,000 Euros. [48] Microsoft was required to make this information available to competitors as part of the European Commission March 24, 2004 Decision pertaining to antitrust violations.
Free software, libre software, or libreware is computer software distributed under terms that allow users to run the software for any purpose as well as to study, change, and distribute it and any adapted versions. Free software is a matter of liberty, not price; all users are legally free to do what they want with their copies of a free software regardless of how much is paid to obtain the program. Computer programs are deemed "free" if they give end-users ultimate control over the software and, subsequently, over their devices.
GNU is an extensive collection of free software, which can be used as an operating system or can be used in parts with other operating systems. The use of the completed GNU tools led to the family of operating systems popularly known as Linux. Most of GNU is licensed under the GNU Project's own General Public License (GPL).
Xandros, Inc. was a software company which sold Xandros Desktop, a Linux distribution. The name Xandros was derived from the X Window System and the Greek island of Andros. Xandros was founded in May 2001 by Linux Global Partners. The company was headquartered in New York City.
SCO Group, Inc. v. International Business Machines Corp., commonly abbreviated as SCO v. IBM, is a civil lawsuit in the United States District Court of Utah. The SCO Group asserted that there are legal uncertainties regarding the use of the Linux operating system due to alleged violations of IBM's Unix licenses in the development of Linux code at IBM. The lawsuit was filed in 2003, it has lingered on through the bankruptcy of SCO Group and the adverse result in SCO v. Novell, and was reopened for continued litigation by order of a new judge on June 14, 2013. Pursuant to the court order reopening the case, an IBM Motion for Summary Judgment was filed based upon the results of the Novell decision. On December 15, 2014, the judge granted most of IBM's motion, thereby narrowing the scope of the case, which remained open. On March 1, 2016, following a ruling against the last remaining claims, the judge dismissed SCO's suit against IBM with prejudice. SCO filed an appeal later that month. In February 2018, as a result of the appeal and the case being partially remanded to the circuit court, the parties restated their remaining claims and provided a plan to move toward final judgement.
Groklaw is a website that covered legal news of interest to the free and open source software community. Started as a law blog on May 16, 2003, by paralegal Pamela Jones ("PJ"), it covered issues such as the SCO-Linux lawsuits, the EU antitrust case against Microsoft, and the standardization of Office Open XML.
In a series of legal disputes between SCO Group and Linux vendors and users, SCO alleged that its license agreements with IBM meant that source code IBM wrote and donated to be incorporated into Linux was added in violation of SCO's contractual rights. Members of the Linux community disagreed with SCO's claims; IBM, Novell, and Red Hat filed claims against SCO.
Beginning in 2003, The SCO Group was involved in a dispute with various Linux vendors and users. SCO initiated a series of lawsuits, the most known of which were SCO v. IBM and SCO v. Novell, that had implications upon the futures of both Linux and Unix. SCO claimed that Linux violated some of SCO's intellectual properties. Many industry observers were skeptical of SCO's claims, and they were strongly contested by SCO's opponents in the lawsuits, some of which launched counter-claims. By 2011, the lawsuits fully related to Linux had been lost by SCO or rendered moot and SCO had gone into bankruptcy. However the SCO v. IBM suit continued for another decade, as it included contractual disputes related to both companies' involvement in Project Monterey in addition Linux-related claims. Finally in 2021 a settlement was reached in which IBM paid the bankruptcy trustee representing what remained of SCO the sum of $14.25 million.
Free and open-source software (FOSS) is a term used to refer to groups of software consisting of both free software and open-source software, where anyone is freely licensed to use, copy, study, and change the software in any way, and the source code is publicly available so that people are encouraged to improve the design of the software. This is in contrast to proprietary software, where the software is under restrictive copyright or licensing and the source code is hidden from the users.
Free/open-source software – the source availability model used by free and open-source software (FOSS) – and closed source are two approaches to the distribution of software.
Freespire is a community-driven Linux distribution currently owned by PC/Open Systems LLC. It is derived from Linspire and is composed mostly of free, open source software, while providing users the choice of including proprietary software including multimedia codecs, device drivers and application software.
Alternative terms for free software, such as open source, FOSS, and FLOSS, have been a controversial issue among free and open-source software users from the late 1990s onwards. These terms share almost identical licence criteria and development practices.
Open Invention Network (OIN) is a company that acquires patents and licenses them royalty-free to its community members who, in turn, agree not to assert their own patents against Linux and Linux-related systems and applications.
Caldera OpenLinux (COL) is a defunct Linux distribution. Caldera originally introduced it in 1997 based on the German LST Power Linux distribution, and then taken over and further developed by Caldera Systems since 1998. A successor to the Caldera Network Desktop put together by Caldera since 1995, OpenLinux was an early "business-oriented distribution" and foreshadowed the direction of developments that came to most other distributions and the Linux community generally.
Linux is a family of open-source Unix-like operating systems based on the Linux kernel, an operating system kernel first released on September 17, 1991, by Linus Torvalds. Linux is typically packaged as a Linux distribution (distro), which includes the kernel and supporting system software and libraries, many of which are provided by the GNU Project. Many Linux distributions use the word "Linux" in their name, but the Free Software Foundation uses and recommends the name "GNU/Linux" to emphasize the use and importance of GNU software in many distributions, causing some controversy.
SUSE Linux is a computer operating system developed by SUSE. It is built on top of the free and open source Linux kernel and is distributed with system and application software from other open source projects. SUSE Linux is of German origin, its name being an acronym of "Software und System-Entwicklung", and it was mainly developed in Europe. The first version appeared in early 1994, making SUSE one of the oldest existing commercial distributions. It is known for its YaST configuration tool.
In the 1950s and 1960s, computer operating software and compilers were delivered as a part of hardware purchases without separate fees. At the time, source code, the human-readable form of software, was generally distributed with the software providing the ability to fix bugs or add new functions. Universities were early adopters of computing technology. Many of the modifications developed by universities were openly shared, in keeping with the academic principles of sharing knowledge, and organizations sprung up to facilitate sharing. As large-scale operating systems matured, fewer organizations allowed modifications to the operating software, and eventually such operating systems were closed to modification. However, utilities and other added-function applications are still shared and new organizations have been formed to promote the sharing of software.
Linux began in 1991 as a personal project by Finnish student Linus Torvalds to create a new free operating system kernel. The resulting Linux kernel has been marked by constant growth throughout its history. Since the initial release of its source code in 1991, it has grown from a small number of C files under a license prohibiting commercial distribution to the 4.15 version in 2018 with more than 23.3 million lines of source code, not counting comments, under the GNU General Public License v2 with a syscall exception meaning anything that uses the kernel via system calls are not subject to the GNU GPL.
Digital Cornerstone was a Linux and open source software company based in San Diego, California. It primarily targeted desktop computers with its flagship Linux distribution, Linspire. It was bought in 2008 by Xandros, Inc., a former competitor, and made a semi-independent subsidiary of the company.
The GNU General Public License is a series of widely used free software licenses or copyleft that guarantee end users the four freedoms to run, study, share, and modify the software. The license was the first copyleft for general use and was originally written by Richard Stallman, the founder of the Free Software Foundation (FSF), for the GNU Project. The license grants the recipients of a computer program the rights of the Free Software Definition. These GPL series are all copyleft licenses, which means that any derivative work must be distributed under the same or equivalent license terms. It is more restrictive than the Lesser General Public License and even further distinct from the more widely used permissive software licenses BSD, MIT, and Apache.
Linspire is a commercial operating system based on Debian and Ubuntu and currently owned by PC/OpenSystems LLC. It had been owned by Linspire. Inc. from 2001 to 2008, and then by Xandros from 2008 to 2017.
{{cite web}}: CS1 maint: bot: original URL status unknown (link)We have declined to discuss any agreement with Microsoft under the threat of unspecified patent infringements.
LLC is a subsidiary of Acacia Research Corporation... This past July Acacia hired Jonathan Taub away from his job as Director, Strategic Alliances for the Mobile and Embedded Devices (MED) division at Microsoft and then, just last week, it hired Brad Brunell away from his job at Microsoft where, among other jobs, he served as General Manager, Intellectual Property Licensing.
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