Subject: Re: Patent-based dual-licensing open source business model
From: "Ben Tilly" <btilly@gmail.com>
Date: Wed, 13 Sep 2006 17:39:04 -0700

On 9/13/06, Lawrence Rosen <lrosen@rosenlaw.com> wrote:
> Ben Tilly wrote:
> > PS Also note that the idea of actively using patents in any way will
> > cause many in the free software world to start foaming at the mouth
> > and showing other signs of being unreasonable.  But you knew that.
>
> I'm not surprised....
>
> It often takes a while to explain new ideas. I'm glad that the people on
> this list haven't resorted to foaming yet. I'm dreading getting back to the
> Groklaw conversation on this same topic, though, for that very reason, but I
> can't avoid it any longer.

*foam*  *foam*  *foam*

See?  I started foaming!

> "Patents!" There, I've said it. Should I go to free software jail?
[...]

You're a lawyer.  We already know you are evil.  But we like you anyways. ;-)

Seriously, though, patents leave a bad taste in my mouth.  For a
number of reasons, some personal and some not.  For one thing, when I
see a patent I am inclined to believe that it wouldn't hold up if
litigated.  Maybe yours is, maybe not.  But a shocking fraction are,
so it galls me to have to even *think* of paying you money because you
have more money for lawyers than I do.

And in this case, it really smells of, "How can patent trolls play the
free software game?"  That may be an unfair description of your
client.  But I loath patent trolls enough that the possibility that
some might take note and follow this path bothers me.

So no matter how reasonable the strategy is on paper, I have an
automatic dislike that comes up.  I know I'm not alone in this.  As a
point of business strategy, I think your client needs to understand
that lots of people will react this way, and the result will be a
level of unavoidable bad press in the free software world.  The
strategy may still work, but you have to *expect* people to be
consistently unreasonable.

As related random note, patents on software are NOT enforceable in
many countries.  And a number of prominent free software people are
among the activists who have kept things this way.

Cheers,
Ben