Subject: Re: Why software patents are bad
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Fri, 24 Sep 1999 12:18:00 +0900 (JST)

>>>>> "kms" == Karsten M Self <kmself@ix.netcom.com> writes:

    kms> "Stephen J. Turnbull" wrote:

    >> Except that software covered by a "poison-pill" is not free any
    >> more.  Double-plus-ungood.
    >> 
    >> For it to work, you _must_ shoot innocent bystanders:
    >> programmers and users whose only sin is prior employment at a
    >> company whose legal department decides to take action against a
    >> covered project.  This is

    kms> I don't see that this is the case.

I know; if you did, you would never have proposed it.

The point is that Conglobulation Inc's decision to act on an alleged
patent infringement is going to be made by the legal department and
the top executive suite: how many Emacs users are there?  None, I bet.
There are probably one or two programmers with an interest in the
patent, so collecting royalties.  The finance department and
stockholders are happy with the penality revenues and the increased
demand for their product.  There are the beneficiaries.  Lots of free
software users there, huh.

But over in the Personnel Department there are two guys who just
managed to get the department head to sign off on a Linux/Apache based
server for the departmental intranet.  (Ignoring the fact that it is
highly unlikely that Apache would be covered, because of the non-viral
license, and the fact that I bet Linus won't sign up for the
poison-pill, making enforcing it over Linux complex.)

To inflict any pain on Conglobulation Inc, you have to destroy the
work done in the Personnel Department.  But those people are
guilty[sic] of patent enforcement only by prior association with the
corporation.  I really really don't think that's the kind of violation
of license envisioned in RMS's definition of free software.

Omelets and eggs, as far as I can see.

In other words, the poison-pill clause is simply hostage-taking.
_You_ may think of the hostages as "merely" doing the corporation's
work for pay, and they can of course still use Linux at home.  _They_
will not like being sacrifices for the cause, having their work
destroyed by "friendly fire"!  Their work is an important part of
their life, or they wouldn't be doing it with free software.

No?

How about independent consultants trying to provide free software
solutions to large corporations, any of which may very well have some
software patents they might like to enforce?  If they have good
lawyers, they'll get paid for the project even though they don't
actually deliver it---because it is now illegal for the large
corporation to accept delivery.  OTOH, the large corporation may
decide to try to break the contract on the grounds that the consultant
can't deliver an unencumbered product.  Oops.  Better have a _very_
good lawyer.

    kms>  - Hold software licensees responsible for the actions of
    kms> major patent licensors.  Something like "the friend of my
    kms> enemy is my enemy" or "gains by poisoned fruit shall poison".
    kms> I'm not sure this is necessary, possible, or attractive.  I'm
    kms> curious as to why Stephen suggests it.

I don't know whether it's possible, but it seems plausible.  Necessary
it is not but it's an obvious extension of the current line of
thought---especially given that people who are formally part of a
conglomerate organization may have no interest in enforcing the
patent, whereas those who are profiting from the derivative monopoly
over their products using the licensed technology (and the fact that
they are licensing the product means they are formally a separate
organization) surely do.

I suggest it precisely because I find it very unattractive, and I hope
others do too.

-- 
University of Tsukuba                Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
Institute of Policy and Planning Sciences       Tel/fax: +81 (298) 53-5091
__________________________________________________________________________
__________________________________________________________________________
What are those two straight lines for?  "Free software rules."