Subject: Re: [Freesw] priorart.org
From: Seth David Schoen <schoen@loyalty.org>
Date: Tue, 15 May 2001 18:41:17 -0700

Ravicher, Daniel B. writes:

> Seth [Gordon],
> 
> Admittedly, I am a patent lawyer whose view may be skewed, but not
> withstanding that fact, I have to respectfully disagree.  IBM (one of the
> world's foremost patent holders) is running a full two page ad in MIT's
> Technology Review this month discussing nothing other than Linux and how IBM
> can develop Linux for specific customer needs.  [If memory serves me well, I
> think they say something to the effect of "Don't buy cookie cutter off the
> shelf when you can get software that does what you want".]

One recent example of IBM's custom development on Linux was adapting
LinDVD (from InterVideo) for IBM's Linux distribution which ships on
IBM ThinkPads.  There are free software players like LiViD which
include more features consumers would prefer, and don't cost any
money, but the MPAA and the DVD CCA have made legal threats against
that software.  The MPAA insists that people who want Linux support
for playing DVDs should be using LinDVD; IBM apparently does not
disagree.

Although IBM has done plenty of good things for the free software
community, shipping LinDVD instead of a free software DVD player was
probably not one of them.

You can see a thread on the dvd-discuss mailing list about this
issue:

http://eon.law.harvard.edu/archive/dvd-discuss/msg11913.html

I also have a longer message which gives a list of defects in LinDVD,
relative to free software DVD players, and argues that IBM's only
motive for not shipping a free player was the desire to avoid
lawsuits.  I can forward that message to people who are interested, if
I can dig it out; it wasn't sent to a public mailing list.

My point is that although IBM is willing to do free software
_development_, it doesn't appear to be interested in fighting legal
battles (in this instance, against the DVD CCA rather than against a
software patent holder) to protect free software.  Instead, IBM worked
around the threat in this case by cutting a deal with the DVD CCA which
benefits only IBM, not IBM's customers, and definitely not LiViD
developers.  LiViD developers are certainly afraid of being sued --
and for good reason, since the project's lead developer, Matthew
Pavlovich, actually _has_ been sued!

This makes me think that we can't rely on IBM -- at least, given
current IBM policies and practice -- to challenge or work around
threatening intellectual property claims in a way that will protect
non-IBM developers too.

The fact that IBM thinks Linux is a good operating system (which is
true) or the open source model can be "a more efficient development
methodology" in some cases (which is also true) is nice, and I commend
IBM for recognizing these things and for giving development and
mindshare support to free software.  But it surely doesn't mean that
the software patent risk has gone away just yet.

> Also, remember
> that Bruce Perens works for HP (another patent superpower).  True, these may
> very well not be "average" free software developers, but they definitely are
> some of the most notable.

Bruce Perens is convening a summit on software patents _because_ he
thinks that the average free software developer is at risk from the
status quo.

http://perens.com/Articles/Patents.html

Here's what Bruce said there about IBM and HP:

   Ironically, some of the biggest patent holders are the Free Software
   Community's own partners, companies like IBM and HP that have
   aggressively incorporated GNU/Linux into their business plans and
   expect significant revenue from it before long. IBM is said to hold
   10% of software patents, and HP is one of the largest patent holders
   in general. It's important for us to start a dialogue with these and
   other partners. That's why I am calling a summit meeting on Free
   Software and The Law. Patents will be a full-day topic, with DMCA,
   UCITA, license law, and other legal issues covered on a subsequent
   day. Unfortunately, this isn't a public meeting. When asked about
   that, Richard Stallman said inviting a public audience to a
   negotiation isn't the best way to get an agreement. However, I've
   invited a broad slate of Free Software representatives, covering all
   of our various viewpoints, and will invite a few more.

   The meeting will simply be a discussion and a negotiation, none of it
   is set in stone, but there are some things that the Free Software
   community representatives might be likely to ask for. For example, we
   might ask for some assurance that our corporate partners aren't going
   to sue us.

-- 
Seth David Schoen <schoen@loyalty.org>  | And do not say, I will study when I
Temp.  http://www.loyalty.org/~schoen/  | have leisure; for perhaps you will
down:  http://www.loyalty.org/   (CAF)  | not have leisure.  -- Pirke Avot 2:5