There's been a great deal said about the conflict between open source and a software patent regime in the context of the debate over software patents in the EU. Mostly the conflict is seen as stemming from difficulty that open source developers would have in paying fees or defending patent suits, because they do not have an income stream or hold their own patents. This argument has always puzzled me a bit because there certainly are commercially successful open source software firms; they certainly have an income stream, although it may not take the form of royalties. Also, suing an open source developer would be a bit like swatting a killer bee; there seems to be no shortage of attorneys and others willing to pony up to help with the defense. And furthermore open source folks may not hold patent rights but they certainly hold copyrights, and don't seem particularly concerned about entangling other firms in extremely complicated downstream licensing liabilities; faced by the threat of a patent suit, they might well be able to come back with a copyright suit. Finally, the entire argument is a bit peculiar. If open source developers cannot pay a patent license, they could not presumably support any other kind of liability as well. Does this mean that we should abolish all legal liabilities?

So the conflict between patents and open source is more complicated than the issue of the income stream. The difficulty lies in the details of the open source licenses themselves...

Section 7 of the GPL, for example, is in tension with patent licensing. If Firm A is distributing code under the GPL and discovers that the code violates Firm B's patent, Firm A is stuck. If it takes a license from Firm B, Firm A will not be able to convey its rights under the license to other open source developers when it distributes the code. GPL section 7 seems to say that in the case of a conflict between the GPL and other obligations, Firm A may not distribute the code. Firm A is going to have to quit, to design around the violation, or hope that no one discovers that it has taken a license from Firm B, which downstream open sourcers will be violating.

The BSD open source license doesn't have *this* problem but seems to have others.

So far the response to such difficulties seems to be to design around patent violations. Clumsy, but not an unsurmountable obstacle to the success of open source so far. So far, no need to address the perceived lack of an income stream for open source by making sure no one else has one either.

Particularly since it is not clear that the problem is patent law (admittedly in need of reform). Perhaps it is the extent to which open source licenses try to bind not only the immediate parties to the license but parties downstream and even upstream for generations? Not for nothing did physical property law evolve notions like the Rule Against Perpetuities, plaguing law students so that estates could remain freely alienable.

posted by Solveig Singleton @ 8:31 PM | Patents, Software

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