Open Source Business Model Using Software 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.

Stallman's tactics for a new generation

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

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

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.

Re:Stallman's tactics for a new generation

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.

Re:Stallman's tactics for a new generation

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.

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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

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.

Legal?

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

Re:Legal?

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.

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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 disjo

Which license?

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

Re:Legal?

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.

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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 f

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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.

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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 differenc

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Simple. You just give permission on the criteria that works that implement the patent will be licensed under the GPLv3 or another similar license.

this has been tried before

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.

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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 reaso

In their DNA, eh?

....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

"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.

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I am pretty sure they already do this

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I am pretty sure they already do this.

Here is a case which is close, but not exactly, that. [noooxml.org]

Plenty more in google where that came from.

They ARE evil.

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.

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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?

Re:As a small business owner

That would be against the existing copyright license anyway, since you have to attribute the original developers of your software.