Subject: software patents are (almost) good
From: Thomas Lord <>
Date: Thu, 03 Jul 2008 12:37:14 -0700

Stephen J. Turnbull wrote:
> I think Tom is confusing the OSL, which is a software license that
> contains a patent license, with a certain "covenant" that is
> effectively a public (pure) patent license (ie, the licensor hasn't
> necessarily written, let alone distributed, any software).

I don't think that I'm confused but I gather that I was unclear.

If one has a patentable idea I would not suggest simply "giving
it away, gratis" to the open source industry.   Rather, patent
it!  Practice the patent in OSL form to protect software freedom.
Otherwise seek to exclude others from the practice of your patent
unless they pay you rent.   If someone wants to practice your patent
in a proprietary program, charge them rent!  If someone wants
to practice it in a device, charge them rent!  And so forth.

Lobby not for the abolition of so-called software patents, for
to do so is anti-labor and, anyway, nearly impossible to construct
as legislation.   Rather, lobby for or argue in court that the
practice of the four freedoms as characterized by OSL should
not be recognized as making, using, selling, or offering to sell
in the ways that can be excluded by patent protection.   The ideal
situation to reach, for the causes of freedom and labor justice
equally, is one in which OSL's care with patents is simply redundant
with the law.

It is on that very point that the true and important distinction
between the open source initiative and the free software movement
can be seen.   The open source definition specifically and carefully
equivocates software freedom with liberal licensing terms.    It
is designed less to protect individuals and users and more to create
a convenient climate for businesses which seek to enter software
markets with lowered development costs.   Consequently it encourages
people to publish using licenses such as "The Berkeley License" or
the "MIT License": licenses which encourage the creation of
proprietary derivative works and which aim, in general, to specifically
not exclude.

In that way, the open source initiative is squarely anti-labor, both
in theory and practice.   It aims to create a situation in which the
price of labor is as close to $0 as can be.

In contrast, the free software movement is not centered on some
standard for convenient-to-business licenses.  Rather, it is centered
on freedom for individuals.   The movement as represented by FSF
encourages the use of the GPL not because there is anything sacred
about a particular manner of licensing but, rather, because the GPL
is a strategic and tactical tool for the preservation and spread of

The four freedoms are in theory pro-labor for by their nature and
the nature of software they encourage a situation in which there
is constant and widely distributed demand for customization and
extension of software to create bespoke systems.

Protecting the reciprocally assured right of all people to exercise
the four freedoms is *narrower*, by far, than trying to protect
all "OSI-approved license" software from patent exclusions.
In my opinion (untested in court) the protection of the four freedoms
follows from already established principles -- it's already the case,
in my view.  Regardless, one paragraph of legislation could certainly
dispel any doubts (and contrast that with what kind of legislation and
jurisprudence it would take to quash the vague category of "software 

I would be quite happy, personally, to see a situation come to pass
in which the only safe haven from so-called "software patents" is
to limit one's activities to the four freedoms, using a copyleft 
license.   It would represent a back-slide in some ways: there is plenty of
open source code, not relicensable, that would need to be replaced.
Nevertheless, it would be a permanent and profound victory for the
cause of software freedom.

Yet, those who insist merely on "open source" can not be enthusiastic
about such a prospect.   The OSD ("Open Source Definition") would
not withstand such an outcome.   Many "open source" firms who are
not much interested in software freedom per se would find themselves
in trouble.   The users, though, should simply shrug were that to happen.
Freedom is worth more than those firms.