06 Feb 2005

Legal Victories, Present and Future

Good news has been springing up all over for the free software movement in the last few weeks. In Europe, the Free World has again demonstrated its political strength in the controversy over software patenting. In the US, there are powerful new indications that the leaders of the IT industry regard free software production as an indispensable contribution to their own long-term welfare.

The announcement on February 3rd by the legal policy committee of the European Parliament confirmed the extent of the Free World’s success in building a Europe-wide political coalition against software patenting. The Committee invoked Rule 55 of the European Parliament’s Rules of Procedure to request that the Council of Ministers resubmit a proposal to the Parliament, starting the legislative process over. Though it is unclear as I write whether this is the prelude to further insistence by the Council of Ministers on its pro-patent position or the beginning of a fundamental renegotiation on the issue, the political significance of the alliance between the Free World and the software entrepreneurial sector in Europe is now unmistakable. The European Parliament as a whole, in its relation to the Council of Ministers, has become institutionally committed to a patent policy made by democratic will. In the US, where patent policy has not been the subject of legislation for a generation, and where the pharmaceutical and IT industries have accordingly been able to get away with everything but murder at the Patent Office, this sudden upwelling of democratic concern for the content of patent law is downright disquieting.

The Free World’s political success in Europe is occurring at a time when the largest IT patenter is fundamentally rethinking its approach. When IBM—which receives more patents each year than anyone else—reassesses its patent policy, continents listen. And with its initial announcement of “500 patents for free and open source software” in late January, IBM cleared its throat. IBM’s statement amounts legally to an “estoppel,” an action incompatible with a later assertion of legal rights. By announcing that parties have unrestricted rights to make, use and sell software practicing these IBM patent claims, so long as they do so under a free software or open source copyright license, IBM is moving to use its munificent patent assets as a subsidy for the growth of the free software commons. It’s a “free trade zone” created by an entity that wants all other parties committed to the free exchange of software ideas to have the benefit of patent claims through which it might otherwise attempt to exert control. IBM knows that a rising tide in the Free World raises all boats, including its own. But those who remain outside the Free World trading system altogether, like the monopoly, lose.

IBM’s initial move cannot yet be assessed in detail; it will take time to understand what claims those 500 patents contain. But the great significance of IBM’s announcement lay behind the surface of the patents; IBM left knowledgeable industry observers in no doubt that this is merely one small step in a larger program. For a company that was awarded more than 3,000 patents last year alone, 500 isn’t very many. But if IBM is beginning to undertake a free trade agreement with the Free World, of which these are early signs, continents won’t just listen. They’ll move.

Hoping to get in on the attention, Sun Microsystems promptly published a promise to make 1,600 patents available to “open source.” Looked at first like a chorus of “Anything you can do I can do better,” but the details didn’t quite check out. Sun had left it ambiguous whether everyone making free software and open source had the benefit of its patent claims, or whether the claims were free only to those who were working on Solaris under Sun’s new license, the CDDL. The Free World immediately sought clarification on whether this was genuine free trade or just a knockoff, and we’re waiting as I go to press. Let’s hope the real chorus wasn’t “Anything you can print, I can print smaller than you.”

And there’s one last story, in which I play a little bit of a role. On February 1, I announced the formation of the new Software Freedom Law Center, www.softwarefreedom.org: a non-profit law firm in New York City that represents non-profit free software and open source projects who need legal help for the present and the future. The SFLC is grateful to the Open Source Development Lab for raising money among its members and others to support the Center, which is coming into existence with more than $ 4.25 million in funding from large IT vendors and customers. They depend on the Free World’s products to serve their customers and power their mission-critical applications. They know it’s time to help out. The Center is going to make new Free World triumphs possible. I’ll talk about how next time.

This column was first published in the UK in Linux User. It is also available in PostScript and PDF formats.

permalink | columns/lu | 2005.02.06-00:00.00

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