Free Software's Secret Patent Weapon


Yesterday I was warning about the threat that the super-troll Intellectual Ventures represents. To provide some balance, here's a surprisingly upbeat piece from Samba creator Andrew Tridgell on how to read software patents. It's incredibly well done, and I recommend it to everyone. But what really struck me was the concluding section that suggested that free software actually has a secret weapon when it comes to software patents: its community.

How can we make ourselves a tough target? And I think it’s very important that we be the toughest, meanest target for patents on the block. We can do it, because we have something that other people don’t. We have a technical community that is really really good at the sort of logic of protocols you need to defend against patents. If we can find a way to coordinate within that community to actually build the patent defence, then we can do something rather interesting: if any time somebody in a carpark mentions some patent and FOSS might violate it, jump on it! Squash the living daylights out of it. What do you do? You find a non-infringement argument. You find a workaround. If you find a workaround, then you shout it from the rooftops. You publicise it.

What does publicising that workaround do? What does it do to the motivation of the people who own the patents? The people trying to make money out of these patents? If you publicise the workaround, then not only do they not get the licence fee from the free software community, they might stop getting the licence fees from the proprietary vendors as well because those proprietary vendors say "hmm, we don’t have to pay $10 for a copy anymore, we can use this workaround the free software community has found". So that means that this person holding a patent, wondering who to strike first, wondering who to try this patent out on, will say: "if I try this out on a proprietary company and they find a workaround, they’re going to keep it secret, because they want to keep it secret because they don’t want other people to have the workaround because they want to be the only ones not paying the fee.

If we go after the free software community, they’re going to advertise the workaround, we might lose our entire value of this patent. We might lose the lot. And it’s expensive, getting patents, expensive maintaining them. So they don’t want to lose them. That’s where I want us to be as a community.


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