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Open Source Business Model Using Software Patents

Posted by kdawson on Sat Mar 29, 2008 12:18 PM
from the say-it-ain't-so dept.
Patents
Joe Barr writes "Robin Miller has an exclusive video interview with Larry Rosen and Fred Popowich this morning on Linux.com about their new open source business model which includes software patents in its DNA. Their motto is 'Free for open source, everyone else pays.' Larry Rosen was once legal counsel for the OSI." Linux.com and Slashdot share a corporate parent.
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Submission: Open source business model using software patents? by WaRtHaWg (55454)
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  • One of the things that I found interesting in reading Richard Stallman's account in Free as in Freedom [amazon.com] of his early Free Software visions was that he was essentially using the copyright system against itself. The sealing of information was an offensive concept to him, but the system could be gamed to ensure freedom of access. It sounds like this innovators are doing the same with the patent system. Now, someone just needs to bend trademark law backwards.

    • Re:Stallman's tactics for a new generation (Score:5, Insightful)

      by serviscope_minor (664417) on Saturday March 29 2008, @12:55PM (#22905930)
      but the system could be gamed to ensure freedom of access.

      Funny thing is that it's not really gaming the system at all:

      "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."


      It's hard to imagine how Free(TM) software doesn't promote the progress of science and useful arts. As such, it's using the system for the purpose it was originally intended for, albeit in an unusual way.

    • Re:Stallman's tactics for a new generation (Score:5, Insightful)

      by david_thornley (598059) on Saturday March 29 2008, @01:17PM (#22906060)

      What's wrong with trademark law? Patents prevent me from writing my own frippin' code. Copyrights prevent me from modifying and sharing code. Trademarks are a way of saying who the code is from, and giving proper credit is pretty much mandatory in the free and open source software movements.

      • The Apple Computers versus Apple Records battle shows how trademarks can stifle innovation. Apple Computers had to fight long and hard to expand its offerings.

        • The Apple Computers versus Apple Records battle shows how trademarks can stifle innovation. Apple Computers had to fight long and hard to expand its offerings.
          They deserved to have to fight long and hard. It is really confusing that there are two Apple's in the music business.
          • Apple Records started hassling Apple Computers when the latter just wanted to play sound samples as system beeps. It had nothing to do with music.
            • Apple Computers gets its name from Apple Records. If there had been some sort of cosmic convergence I'd side with the computer company, but in this case, they brought it on themselves. It was a nice bit of homage to the Beatles, but a foolish business choice.
        • The Apple Computers versus Apple Records battle shows how trademarks can stifle innovation. Apple Computers had to fight long and hard to expand its offerings.

          And how did that stifle innovation?

        • Re: (Score:3, Funny)

          by jmv (93421)
          I have a fruit company called "Apple Macintosh", but ever since I've been trying to diversify to computer hardware, I keep being threatened by another company called Apple. This is stifling my capacity to innovate.

      • Trademarks have been turned into property rights (Score:5, Interesting)

        by Geof (153857) on Saturday March 29 2008, @02:26PM (#22906464) Homepage

        Trademark law was created to benefit consumers. That purpose has changed. From Yochai Benkler's The Wealth of Networks (p. 290):

        in 1995, the U.S. Congress enacted a new kind of trademark law, the Federal Antidilution Act, which for the first time disconnects trademark protection from protecting consumers from confusion by knockoffs. The Antidilution Act of 1995 gives the owner of any famous mark -- and only famous marks -- protection from any use that dilutes the meaning that the brand owner has attached to its own mark. It can be entirely clear to consumers that a particular use does not come from the owner of the brand, and still, the owner has a right to prevent this use. While there is some constitutional free-speech protection for criticism, there is also a basic change in the understanding of trademark law -- from a consumer protection law intended to assure that consumers can rely on the consistency of goods marked in a certain way, to a property right

        Trademarks are undergoing the same change as copyright and patent. These began as privileges intended to promote the public good. They have been transformed into property rights for private benefit, at the expense of the public they were originally intended to serve.

        Trademarks are often abused to achieve an effect similar to copyright. For example, trademarks can be registered on names from the public domain. IANAL, and I know courts have ruled that this is not the purpose of trademarks, but they are used this way regardless. Want to publish a Conan story in Canada (where Robert E. Howard's works are unambiguously in the public domain)? Go ahead - but don't call it Conan. Or look at the continued abuses [olyblog.com] of the Olympics to force already-existing businesses to change their names.

        Trademarks are used to create monopolies on whole categories of products. I have a young son and recently discovered how effective this is for toys. Toys have gone from being simple products to being cross-promoted product and entertainment lines. You no longer buy your child a toy train - you buy a Thomas the Tank Engine train. Sure, kids love Thomas, so there's some value there. But it pushes out competition and diversity, dominating the whole product category. How can you compete unless you too have a TV show, books, toy trains - the whole bit? One by one, the categories in toy stores are turning into brands. In a Toys R Us I found the "trains" section should simply have been labeled "Thomas and Friends" - because that's virtually all that was there (and boy was it overpriced). Now Disney seems to be trying to do the same thing with Cars.

        Kids learn brands at a very young age, and I don't think they're good for kids. Despite my efforts, my son knew about Thomas by age 2. Then he started asking about other products. I taught him the word "logo" because I didn't want him to think "Dairyland" was the word for yoghurt. I want him growing up in a world of trains and cars and music and so on, not of Thomas(TM), Cars(TM), and Apple(TM). I want a chance to teach him what a brand is (and what it is not) before he assimilates them into the kinds of objects that exist in the world. Brands were supposed to enable consumer choice, not narrow the kinds of things we can think about.

    • Software should be handled by copyright, not patent. I won't respect anyone's patent claims for software. I will respond with a big "Fuck You" to anyone who tells me I can't write and distribute a sequence of characters because they patented it.
      • Exactly. Software moves way too fast to allow BS like patents in a way. Copyright works. Use of trade secrets works as well. But patents are BS wrt. software.

        See blackboard software and their patent trolling vs. others. See all the patent trolls vs. Microsoft (like that DirectX patent troll posted last year on slashdot). See RIM vs. patent trolls. Instead of innovation, patents breed FUD in the software world.

        If you can patent software bytes, why can't mathematicians patent their theorem? Why is an implemen

        • See blackboard software and their patent trolling vs. others. See all the patent trolls vs. Microsoft (like that DirectX patent troll posted last year on slashdot). See RIM vs. patent trolls. Instead of innovation, patents breed FUD in the software world

          Neither the Blackboard case nor the RIM case involved patent trolls. You probably should learn what terms mean before using them.

    • Free as in Freedom may also be found online [oreilly.com] for free (as in beer) ...in case anyone didn't know already.

      As for software patents, I personally object to the very concept of granting individuals exclusive rights to ideas. Software patents are an abomination and should be abolished all together. I fail to see why it should change anything that the applicant is an open source business.

  • How is legal to freely license patents to one party while charging for those patents when licensed to another party?

    • Re:Legal? (Score:4, Informative)

      by serviscope_minor (664417) on Saturday March 29 2008, @12:51PM (#22905904)
      How is legal to freely license patents to one party while charging for those patents when licensed to another party?

      Different licensing conditions == different price.

      That's perfectly fair, and legal.
      • The video was too laggy to watch (guess it got busy), but their draft patent policy made interesting reading. It has one set of rules for open-source usage, and one set of rules for commercial usage. Are they assuming that these two sets of users are disjoint?

        I wonder which set of licensing conditions / price a commercial open-source project would fall under?
        • I wonder which set of licensing conditions / price a commercial open-source project would fall under?

          Whichever one they choose, like a dual-licensed GPL project. If you like zero-price and are fine with the open-source conditions, then choose that. If you have proprietary code you don't want to open source, then choose the commercial license.

          The problem I see is that it is much harder to tell whether a proprietary project is violating a specific patent. On that note, I've often wondered: since it is

          • Ahh but then you've got a split between "Open source" and "Free software", something many people get all pissy about.
            • Considering this is coming from OSI guys, I'm taking it that they don't particularly care in this case. It's the FSF & RMS followers who get pissy about this.
          • Yeah, that would be my guess as well. I'm sure that it's deliberate that they've left it vague though. Looking at who is behind it I'm sure it's not something that would have escaped them.

    • Re:Legal? (Score:4, Informative)

      by seeker_1us (1203072) on Saturday March 29 2008, @12:52PM (#22905908)
      It's your patent.

      If you want to issue a blanket license to anyone using GPL for $0.00, you can. Someone doesn't want to meet those terms for automatic license? Fine, they just have to pay you something else.

      From a legal perspective its fine (IANAL).

      Software patents are still broken though.

    • Because the patent holder says so. If you hold a patent (or a copyright for that matter) you have the right to charge whatever you want for it's usage. If I write a story and get it filed with the copyright office, I can then turn around and charge $60 for it, but because I know you, give it away. It's the same basic principle, just expanded.

      Segregation laws are racially based, not OS choice based.
    • It's no really "gratis". There just exists a quid pro quo different from money, namely: you must open source your project. So you're not discriminating against any party since it's up to them to choose what kind of remuneration the prefer to deal with.
    • In that it is something that is done constantly, you either have two versions of the license or two versions of the product.

      This is nothing new, think of all the proprietary software out there where there are "free to use" versions where the only difference is a license agreement that you will not be using the software for commercial applications.

    • Simple. You just give permission on the criteria that works that implement the patent will be licensed under the GPLv3 or another similar license.
    • Large companies frequently use patent pools and cross-licensing agreements working this way. "We agree to let you use our patents, and you agree to let us use yours". Compensation for a patent license doesn't have to involve money alone, or even at all. If money is all you're willing to offer for a patent license, your contract will naturally have a higher dollar cost than one that includes cross licensing. Cross licensing makes sense when your motivation is primarily defensive (avoid the expense of defendi
    • That's the thing about ownership.... if you own something, you get to name the price for it. The last thing we want is government stepping in and telling us how to set prices on things we own. If it were illegal (as in against the law enforced by the government) to set your own prices for things which are yours, you wouldn't really own it.

  • this has been tried before (Score:3, Interesting)

    by nguy (1207026) on Saturday March 29 2008, @12:59PM (#22905962)
    this sort of model has been tried before and it tends not to work all that well. Usually, you end up with a company that may nominally use some open source licenses, but they might as well be proprietary. In particular, companies like this tend to use their power to prevent forking, and without forking being realistic, a project isnt really open source.

    Patents for open source only really works if the patents are held by a separate non profit.
    • If by "open" you really mean "Free as in freedom" then yes you are right.

      But something can be open without being free of all cost or restriction.

      • Re: (Score:3, Insightful)

        by superwiz (655733)
        If by "freedom" you mean the abstract concept for which it is Ok to kill people (and, naturally, do other lesser harmful things to them), then we have a problem. People distinguish between "free"-as-in-speech and free-as-in-"beer" for a reason. The reason is that ambiguity of context allows for mischaracterization of opponents' remarks (generally for the purpose of inflaming passions and curtailing reasonable discourse).

    • this sort of model has been tried before and it tends not to work all that well.
      Cool, you're not bound to repeat history. Could you share the knowledge with me?
  • http://twext.com/patent [license.read.fm] is trying this strategy.. i'm not sure it's a "software" patent, the claims are more about A.) a way to format text for language learners and B.) a method to array text so software can easily format the text..
    • http://olpcnews.com/content/localization/learning_language.html
    • http://wiki.laptop.org/go/WiXi

    the patent makes me feel slightly safer to share the idea.. the open license gives me B.) hope to develop the software [sourceforge.net] (IANAL nor programmer) and A.) a free way to promote "free" us

  • for a Business Model Patent as well. A 2 for one deal.

  • In their DNA, eh? (Score:5, Insightful)

    by NewbieProgrammerMan (558327) on Saturday March 29 2008, @01:36PM (#22906180) Homepage

    ....business model which includes software patents in its DNA.

    Wow, they went to the trouble of getting gene therapy in order to have the text of their patents encoded in their DNA? That's some hard-core entrepeneurship!

    Oh, wait, sorry; that's just some dumbass, buzzword-bingo-bound expression that's not yet considered as cliché as "paradigm shift" or "think outside the box." Sorry to spoil the moment.

  • The wrong approach (Score:3, Insightful)

    by rudy_wayne (414635) on Saturday March 29 2008, @01:38PM (#22906190)
    "Their motto is 'Free for open source, everyone else pays.'"

    Sorry, but this is just plain wrong.

    What if Microsoft did this? They hold many thousands of patents -- what if they said "You can use our patents for free in closed proprietary applications, but open source must pay." People would be screaming bloody murder. Software patents are wrong and should be abolished. The fact that a patent is held by a "good" or "less evil" company doesn't make software patents any less wrong.

    .

    • Re: (Score:3, Insightful)

      by pembo13 (770295)
      I am pretty sure they already do this
    • If they said that people would be screaming bloody murder in opposition to this article's idea. Mostly because they are radically opposite things to do. With one you can keep your freedom, or you can lose it with a cost if you want, while in the other, nobody gets the freedom.
  • This seems to be a pretty natural outgrowth of the dual-license model but applied to patents as well.


    The problem is we should be working towards community-developed open source projects, rather than proprietary and commercial products which happen to be available under open source licenses. In many ways, this represents a step back rather than forward.

  • This is a dangerous course for software development. The only thing this type of business model favors is the pocketbook of the original patent holder.

    I guess I'll patent "Hello World" (nobody has patented that yet, have they?) and license it out to everyone who ever has or will use it.

    We've seen how much grief existing software patents have caused the technology industry, simply because one company's idea comes too close to another that has been patented. Case in point the whole Blackberry/RIM vs. NTP fi

  • They ARE evil. (Score:3, Insightful)

    by Jane Q. Public (1010737) on Saturday March 29 2008, @02:44PM (#22906552)
    I don't care what Rosen says. Protection for software belongs in the copyright arena, NOT the patent arena.

    I have tried to keep an open mind for years now, and I have heard all the arguments before. And by now I have also seen the real results. And based on that, my opinion has not changed: software should not be patentable. Period.
  • Aside from working for OSI for a while, Rosen is also better known for creating some licenses that weren't exactly free and trying to pass them off as being the real thing (failure; nobody uses them), and generally supporting companies who try to exploit the "open source" label for publicity without actually releasing any free software.

    Don't be fooled. He may not be actively opposed to free software, but he's not working for it either. He's just a hanger-on that's trying to profit from it. It's unclear whet
    • MySQL's model involves copyright, while this model involves patents.

      Even so, it reminds me of promises by several other companies not to sue FOSS that use their patented technology. How can we be sure that they won't revoke their promise later?

      • If they use and redistribute GPLed code, they are providing downstream licenses that they cannot revoke. The language in GPLv3 is much clearer than in GPLv2, but I think GPLv2 is sufficiently clear in this case.

        Of course, they could perhaps revoke the license for stuff with BSD and related licenses, but those have always been more vulnerable to exploitation.

    • The only reasonable position on software patents is for their abolition and revision of the broken parts of the Law that allowd them in.

      I completely agree with you. Next question: since neither you nor I have enough clout at the national level to accomplish this noble goal, what should we do about it? If you can't beat them, the next best thing is to outwit them and use the corporate-designed system against itself.

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