“I’m tired of the constant fear mongering around intellectual property and open source software and “enterprises being sued” and thought it time to offer a different opinion” says Stephen R. Walli, an ex-Microsoft employee who worked on open sourcing projects at Microsoft (FlexWiki and Wix).
When are you going to sue your customers?
About The Author
Eugenia Loli
Ex-programmer, ex-editor in chief at OSNews.com, now a visual artist/filmmaker.
Follow me on Twitter @EugeniaLoli
Nice to see a well reasoned article here, even if others may not agree with it
My head is about to explode. Two decent articles posted on the same day at OSNews.com. This one is really top-notch and the one on the benefits and disadvantages of code forks was also quite good.
Thank you for bringing it to my attention.
You are right. Excellent article.
A very interesting read. Well researched, well written… grammatically correct for a change. Definitely an opinion piece that needs to be diseminated at large considering the state of the US patent and legal system.
That very interesting article doesn’t address one important fact : Why does big companies like Microsoft or IBM spend so much money patenting non-ideas ?
I don’t think that there is so much innovation in software, mostly minor tweaks and incremental improvements that can be re-created from scratch. We are still living on 20 years old MIT and Xerox concepts.
Most effective near-software patents are intended to protect the way that something is done rather than the mere idea : MP3 patents doesn’t address the idea of compressing sound but rather some way of doing it. DVD encoding would have no value without a strong industry backing it.
IHMO, software patents are another way of promoting proprietary standards ( copyrights ? ) rather than protecting genuine ideas : For example Microsoft famous failed FAT filesystem long names patent.
In that aspect, FOSS is also a threat to software patents : If OpenOffice XML schemes becomes strong standards, it lowers significantly MS Office’s value.
If Toyota sues Honda’s customers, who loses? Toyota does for sure. But how many Honda customers will buy Honda again, especially if the patent claim proves meritorious? And on the subject of suing the customer, when Microsoft engages the SBA to do it’s dirty work with surprise audits and big fines for petty license violations, who loses? And when Microsoft and vendors, such as CDW, share customer purchasing information so that Microsoft can strongarm customers into signing up for Customer Assurance, who loses? Can you explain why Microsoft is essentially “suing” it’s own customers?
@Treza, yeah I agree to some extent.
“Why does big companies like Microsoft or IBM spend so much money patenting non-ideas ?”
Because it takes a lot of money to defend yourself against being accused of copying a patent, and so small innovative and competitive companies cannot defend themselves, they end up going bankrupt or being bought out cheaply by the suing company.
I don’t mind patents that protect novel well developed technically innovative ideas. But patents on software is another thing entirely. Software is already well protected as ‘Intellectual Property’ by copyrights and has done the industry well over the last 20 – 30 years and even longer. Copyrights stop you from copying code but also allows competition and innovation.
No IP can be poor for the economy, but over stringent IP that stops retards innovation (by keeping it only in the hands of the large IP holders) is also bad for the economy and long term competition.
It shows the level of intoxication that is being pumped into that debate. Any company worth suing would be too expensive to lose, let alone the message you are sending to similar companies.
Big IP holders like HP or IBM are also most at risk of being sued, given the amount of code they churn out distribute commercially and their unparalleled visibility.
Excellent piece.
And on the subject of suing the customer, when Microsoft engages the SBA to do it’s dirty work with surprise audits and big fines for petty license violations, who loses? And when Microsoft and vendors, such as CDW, share customer purchasing information so that Microsoft can strongarm customers into signing up for Customer Assurance, who loses? Can you explain why Microsoft is essentially “suing” it’s own customers?
Are these “petty” license violations having more copies of Windows/Office/etc. than you paid for? I don’t like Microsoft but, even if the BSA is being overzealous, they have a right to get paid for their products. If you don’t like their products, don’t use them. If you do use them, don’t buy one license and install six copies. This is like asking if Honda would sue you if you bought one car and stole five more. Are they suing a customer? Yes they are, technically, but more importantly, they are suing a car thief.
I must concede, however, that having too many copies of Windows installed is far less overt than stealing cars. It’s quite possible for a business to have a license for 5000 copies of Windows and have 5003 installations. Sometimes this will be oversite and sometimes it will be shady business practices. Of course the BSA, like any good business, will err on the side of whatever makes them the most money. Will this hurt them in the long run? I think so.
It seems to me that the focus at Microsoft is not so much making the customer happy but making it impossible for a customer to switch. A captive customer is a lot easier to maintain than a happy customer. However, as word gets out that more customers are captive than happy, businesses and individuals will start looking more to open source (where creating a captive customer is much more difficult). I think this is already starting to happen and it’s gaining momentum.
Wow, that was a bit of a ramble, but the point is that if you want MS software then you better pay for it; if you want free software, try Linux, OpenOffice, Evolution, etc.
Sure, Honda is not going to sue Toyota customers for IP infringement that would be total nonsense. But this article does not address the case of IP-only firms. Companies that do not produce anything (or do not anymore) but only live from IP licensing (who said SCO?) have nothing to lose in sueing the whole world to raise some cash.
IP-only firms are great most of the time. Arm(www.arm.com) anyone?
One of my sociology professors taught it is not ‘power that corrupts’ it is, rather, the ‘fear of loosing power’ which has a tendency to cause or promote corruption.
By-way-of-comparison, if Company A is loosing its marketing control to Company B then it might, in an act of complete futility, and dare I say, stupidity, try to sue the ‘purchasers’ of the Company B product.
I agree with the logic in this article. Company A must have and continue to defend its ‘IP rights’ from the beginning. It cannot go back after a decade or two and punish ‘purchasers’ of a product for their choice in the so-called free market. This is a vendor-to-vendor issue.
In-a-way, as convoluted and pathetic as it appears to be, it is a good thing Company A brought suit against Company B, Company C, … . It forces this issue ‘patent law’ out into open light of public. It allows for correction, if any, to the laws and shows how desperate some entities are to regain marketing control.
That was a suprisingly interesting read. However, i would’ve preferred he discuss more about what kind of dangers OSS face down the road. Some sounding off on Mono also would’ve been interesting.
I give this article a 79% – better than average, but i need more.
“Companies that do not produce anything (or do not anymore) but only live from IP licensing (who said SCO?) have nothing to lose in sueing the whole world to raise some cash.”
Of course they have something to lose. I’m not certain were this fatalistic thinking originated, but sometimes those in the wrong do lose, and those in the right do win.*
*And yes, a court of law is were this all is suppose to happen. Sometimes who’s right and who’s wrong isn’t as black and white as everyone would like.
I have question about patents. Let’s imagine some situation: I have spent last 10 years in cave and when I came out I started coding, and coded an application which becomes successful. If that application infrignes patents that I haven’t even heard about, haven’t read any news, haven’t read about anything new, can patent holders sue me ?
>>I have question about patents. Let’s imagine some situation: I have spent last 10 years in cave and when I came out I started coding, and coded an application which becomes successful. If that application infrignes patents that I haven’t even heard about, haven’t read any news, haven’t read about anything new, can patent holders sue me ?<<
Just think about how laws work and you will be able to answer this yourself. Just a hint: yes.
//If that application infrignes patents that I haven’t even heard about, haven’t read any news, haven’t read about anything new, can patent holders sue me ?//
Absolutely, you’d get your ass sued off. Ignorance of the law is no excuse.
“Ignorance of the law is no excuse”
So there is a legal law on writing code??
Is there a legal law on writing English…?
And writing on a website like this…
Am I breaking a law by writing?
You’ve discovered the principle of patents.
The goal is to make some ideas ( or thoughts ) illegal : You are forbidden to discover things if someone else has discovered them before.
Btw, history of science is full of coincidences of researchers finding very similar concepts at the same time, particularly in mathematics.
Copyright (C) 2005 Thjayo Romanov
I don’t know if you’re breaking the law by writing but if you quote my post I will sue you for sure
As everyone else answered, yes you can be sued, and the IP owner would win.
The good news is that since you were not aware of the patents they can only claim damages. If you wilfully and knowingly used their IP they could sue for triple damages (under US law).
//So there is a legal law on writing code??
Is there a legal law on writing English?//
Ummm … as oppposed to an “illegal” law? Say what?
some states have the called ‘unconstitutional’ laws, which are, yes, ‘illegal’ laws
“The goal is to make some ideas ( or thoughts ) illegal : You are forbidden to discover things if someone else has discovered them before. ”
Maybe in France.
http://www.nolo.com/lawcenter/ency/article.cfm/ObjectID/FC5FEAF9-C5…
well i don’t know about you,but i will have the patent of the word “a” so don’t write sentences with the letter “a” inside,because i will sue you!
I obey the laws of physics.
Why are we slowly moving away from a competitive free-market economy where anyone can innovate and invent and raise capital? This free-market competitive capitalist economy has served us well for hundreds of years and free trade as served us well for thoasands of years…
So why are we now moving to a system of patents, which give the ability of people to stop other people from trading, innovating and inventing. I cannot understand how moving to an anti-competitive system will help us?
It is becoming like a big experiment just as communism was.
I like the comptitive economy as it was where anyone was free to invent and innovate and where big companies had to keep working hard and innovating to survive, instead of just crushing competition through punitive laws.
Are there any economists out there who can shine the light on the reason we are moving in this direction?
— “Oddly enough vendors never sue customers in any sort of broadly applicable way. There is a really simple rationale behind this. Once a vendor sues a customer, they have essentially told that customer they never want that customer’s business again. ”
Eh Hem… Can someone say RIAA. Record companies have been suing customers for years. Which is why I refuse to pay $16 for a music CD. And they wonder why record sales have been declining.
I think it is because we are stupid?
Can’t think of any other reason for dumping on a system that has led humanity from the Dark Ages to what we have today. Imagine, Newton placing IP on his ideas of Physics and Leanardo da Vinci doing the same. Oh well there goes space travel, human anatomy, medical break throughs and aviation.
We are leading ourselves into another dark ages with Corporations behaving like Feudal Overlords. I’m sure it will be short lived but why it has to happen in the first place is beyond me.
Just keep coding and F the law.
I was wondering if someone was going to offer up that example. I think that’s more a copyright issue than a patent issue. The record companies through the RIAA are arguing you’re infringing their copyrights and using rhetoric around “stealing music”. It’s sort of like the example above on some vendors using the BSA in a similar fashion.
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//If that application infrignes patents that I haven’t even heard about, haven’t read any news, haven’t read about anything new, can patent holders sue me ?//
Absolutely, you’d get your ass sued off. Ignorance of the law is no excuse.
”
I think you missed his point, so I will answer it in another way.
With copyright law, if you write a novel which contains whole paragraphs of someone else’s copyrighted material, but yet you can prove you never saw or heard of the original (unlikely nowadays with everything being available on the net) you would not be guilty of copyright infringement, because you did not cut and paste the copyrighted material.
However, patents give you a complete monopoly over an idea. Even if someone else comes up with the same idea by coincidence (or because the patent is obvious…gee…sort of like most software patents) and you cannot prove that they willfully infringed on your patent, you are entitled to damages. This is what is wrong with patent law.
If MS comes out with an Operating System capable of doing tasks A, B, C and D (all 4 never having been done before) and then the next month Red Hat comes out with a product that does the same 4 things, then yes, it is obvious that Red Hat stole those ideas.
However, if both OS’ happen to have a menu that can access all the programs on a system (An incredibly obvious idea BTW. I remember saying it would be a good idea back in the Win 3.1 days when I had never used another OS that it was a pain in the ass having to flip through windows to find an icon for an app or to type in the path to the program’s executable. I said (not in exact words of course, I don’t journal everything I say) “Why don’t they just make a main menu next to the file menu that has all of the applications listed”…..Damn, should have patented it and then sued MS) then Red Hat used this idea because it is obvious, not because they are trying to steal MS ideas, and therefore MS suffered no “real” damages to their business and should not be entitled to damages in a court of law.
“However, patents give you a complete monopoly over an idea. Even if someone else comes up with the same idea by coincidence (or because the patent is obvious…gee…sort of like most software patents) and you cannot prove that they willfully infringed on your patent, you are entitled to damages. This is what is wrong with patent law. ”
*sigh* Do any of you actually read the links I post, or is this place turning into another Slashdot?
“Bringing a patent infringement action can be tricky, because it is possible for the alleged infringer to defend herself by proving to the court that the patent is really invalid (most often by showing that the U.S. Patent and Trademark Office (USPTO) made a mistake in issuing the patent in the first place). In a substantial number of patent infringement cases, the patent is found invalid and the lawsuit dismissed, leaving the patent owner in a worse position than before the lawsuit.[Emphasis mine]”
“To qualify for a patent, an invention must be nonobvious as well as novel. An invention is considered nonobvious if someone who is skilled in the particular field of the invention would view it as an unexpected or surprising development.[Emphasis mine AGAIN]”
Also a judge can have discretion in how broad, or narrow a patent is .e.g.Rambus case.
http://digital-law-online.info/lpdi1.0/treatise60.html
”
*sigh* Do any of you actually read the links I post, or is this place turning into another Slashdot?
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Hmmm, why do you say that? I spoke the truth. Do you realize how expensive it is for a company to overturn a patent and defend themselves in an infringement lawsuit? May be pocket change for IBM or Microsoft, but what about Linus or even the Free Software Foundation? It isn’t like you throw together a response while sitting at home and slap it in front of the judge the next day. No, you pay lawyers sometimes millions of dollars to have this done. The burden of proof is also on the defendant in the case.
”
“To qualify for a patent, an invention must be nonobvious as well as novel. An invention is considered nonobvious if someone who is skilled in the particular field of the invention would view it as an unexpected or surprising development.[Emphasis mine AGAIN]”
”
Oh really, tell that to Amazon/Barnes & Noble…unless of course cookies that store a buyers information is a brilliant invention in your books?
“Eh Hem… Can someone say RIAA. Record companies have been suing customers for years. Which is why I refuse to pay $16 for a music CD. And they wonder why record sales have been declining.”
I used to be quite a number of CDs, now I buy maybe just a couple a year. At the same time, I never used to buy blank CDs, but now I buy a few hundred every year.
The reason being this… Music used to be my number one entertainment on rainy days (often in the UK) but now there are other entertainments – I mostly spend that time on the internet and programming software – GPL software in my spare time. Also I need all those blank CDs to distribute photos and video between my friends in addition to all those linux distros I download.
RIAA relates declining CDs sales to booming blank CD sales. There is no link (well, not directly), only that myself and all my friends I know have moved away from Music as their number entertainment and activity and therefore spend less money on it.
If people are going to download copyrighted music where the agreement is that it should be paid for, then I could expect them individuals to be sued.
However I detest them going after P2P networks over which I may swap my own files. P2P networks are a fine technology over which neither I nor my friends infringe any copyright.
(I did know one guy a while back but I encouraged him to stop).