Re: [Patents] pooling patents for progress and protection

[Peter Vandenabeele <peter.vandenabeele@mind.be>]

On Wed, Jan 01, 2003 at 12:04:25PM +0100, Xavi Drudis Ferran wrote:
> El Mon, Dec 30, 2002 at 11:10:24AM +0100, Alexandre Dulaunoy deia:
> > I will support  the idea only if the current  fighting is lost against
> > software patents. ;-) 
> >
> 
> Me too. 

Dear Xavi, Alexandre,

> I would even ask others to please delay this discussion possibly 
> forever (if we convince our politicians not to allow software patents). 

I think we should pursue both tracks, but they have a different time-line.
The EU action is for the comming weeks/months. Building up the assocaition
that will bundle the defense against SW claims will take years. Writing
a few mails to launch some concepts will not hamper our activities on the
political front. I rather belief that discussing the case where we would
also have to restrain or even attack patent holders will clarify what would
be the exact detrimental effect of accepting the current EU proposition.

> I'm not so pessimistic as Peter on the chances of success. But anyway, 
> I see little merit in this scheme. I don't see how all this framework 
> of patent pools and people having to join an organization, etc. can 
> work for free software, or any advantage on having lots of people 
> fighting other lots of people over patents instead of simply 
> making them all do something useful for society in exchange for their 
> salary.

This reminds me of the pacifist demonstrations in Brussels against nukes
of the years 80, while currently an increasing number of countries are having 
them. It is not by preaching pacifism in one part of the 
[world|SW development community], that you will stop another part of the 
[world|SW development community] to use the [nuclear technology|legal means] 
they have available. I strongly regret this, but please give me a better 
alternative in the current world-wide scope.
 
> If we get software patents, I see no way to protect free software. 
> They are incompatible concepts, no matter what you do. If you have to 
> play with patents you have to put restrictions on freedom in, so it 
> is no longer free software, 

Please check e.g. the Academic license 1.2

 http://opensource.org/licenses/academic.php ;.

The discussion of this license on the GNU site

  http://www.gnu.org/philosophy/license-list.html

classifies it as a Free Software license, but not GPL compatible, and also
discourages use of the Academic license. Also in the discussions on GPL 3.0
the element of patenting is discussed, but I do not know the details there
(more info is welcome). 

I believe it is possible to make a license that is practically usable for
private, non-commercial and commercial use as Free Software (but if commerce 
or individuals want to attack other SW under that system, they will have to 
chose:

- pay and/or cross-licensing
- not use any SW under that system

I do understand that this does not help against smaller entities 
(extortionists)
that do not manufacture anything, but are only aiming to attack large entities
to extact money from them. But even there, at least the association could help
carry the legal cost to see the case through and have a better chance of 
bringing
down the patent that is used with prior art.

> and you lose on ethical grounds as well 
> as on whatever emergent effects the free software models have (free 
> software competitivity, if you want).

I believe that self-defense is ethical if that is based in the current
legal system and with legal means. How ethical is Microsoft in saying that
you are freely allowed to use some patents on CIFS technology, except if
your program is licensed under GPL/LPGP or the like ...

  http://swpat.ffii.org/patents/effects/cifs/index.en.html

> SME's also lose, of course, even non-free software ones. 

SME's loose with SW patents, I agree (although some SME's will also state
that they need patents to defend their unique idea that they "invented"; at 
least I know a few that make this claim and where the funding was strongly
dependent on the availability of those patents). But Free SW SME's may gain 
from an Association that will defend them in case they are attacked on the 
basis of SW patents.

> And big players may well lose in front of parasites, specially taking into 
> account > the psycological effects on stocks and these sort of things (btw, 
> I see no way this patent pool scheme could work against parasites, 
> which could be corsaries on behalf of whatever player you try to 
> fight). 

See above. It only helps to at least be capable of following through on the
legal case.

> > The  technical   (in  legal  term)  implementation   could  be  really
> > difficult.

I agree, but with the importance of Free SW growing and the potential damage
from SW patents growing, eventually something like this will need to be
organized.

As explained long ago, with Copyright, we do have such a system in GPL (you 
are only allowed to use GPL'ed ocde it if you obey to certain rules that keep 
the system self-sustained), but since Copyright is essentially localized to 
the actual code, we could easily build up a parallel system, unhindered by 
other proprietary players that choose ot use other licenses.

With patents we are forced inside a single legal cage (nearly on a world-wide
scale) and we can choose to pray in front of the hungry lions (as the early 
Christians in Rome), or make sure we have some lions on our side, to at least 
have a chance of survival. As Free SW becomes increasingly important, this 
can and will succeed (until the law will change again to find another method
to challenge Free SW, but anyway). 

> And wasteful, and eventually useless, I'm afraid. But I may be wrong, 
> since I haven't really thought about it, and I won't until the EU 
> changes the law to allow software patents, which may never happen anyway, 
> so I beg for "lazy evaluation" of this thread. We could do/are doing 
> lots of other useful things.

I am trying too, on a local scale and next to running a business, but I do 
not see enough practical things happening on the field (please correct me
if I missed some massive actions that target the politicians; I know about
efforts to redo the petition in a format (on paper ?) that is acceptable to
the commission of petitions).

> > We could dig in the idea but only if the current battle is lost... 
> >
> Exactly.

What do you see as a negative side-effect if some would continue to 
explore the idea in parallel (potential defocus from the urgent action on 
the European level is one of course) ?

Thanks for your detailed answer,

Peter

> -- 
> Xavi Drudis Ferran
> xdrudis@tinet.org

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