Don’t fear the patent

The European Parliament and European Commission are currently at loggerheads about software patents and the definition of “computer-implemented inventions.” The open source community is trying desperately to stop any kind of patenting, while large IT corporations such as Microsoft are trying to lobby the parliament into allowing just about any software technique through. In the midst of all this, doomsayers have been predicting the death of Linux and open source software. Open source projects such as MPlayer are now posting huge “The End Is Nigh” notices on their sites. But things aren’t as dark as they might seem. Don’t get me wrong — software patents are bad, very bad. People like Florian Müller of NoSoftwarePatents.com are fighting for a noble cause. But it’s a fallacy to believe that software patenting will kill Linux.

Let’s say that software patents end up being legalised in Europe and continue as they are in the U.S. Linus Torvalds has said (relating to the SCO case) that if any code in the Linux kernel infringes upon legal rights, it will be immediately removed and rewritten. The same principle applies to any patent that open source software may infringe upon. Infringing piece of code? Rewrite it. Patented audio or video codecs? Remove them, and create your own.

We’ve already seen all of this in action. Just look at the OGG Vorbis audio codec, which is steadily increasing in popularity due to its freeness and superior quality to the MP3 format. The BBC is developing Dirac, an open source video codec. OpenOffice.org has its own document format (.sxw) based on Sun’s StarOffice, so if a Microsoft patent for its proprietary.doc format scuppers OpenOffice.org’s compatibility with Word documents, then Linux users still have something to fall back on.

Of course, we have the patent trolls who thrive on patent litigation. Software patents have been floating around in the U.S. for years now. The most notorious might be Amazon’s “One-Click Shopping” patent. Others worthy of mention are Forgent Networks’ JPEG fiasco and British Telecom’s alleged hyperlink patent. But look at how far patents have gotten these firms. BT’s lawsuit against Prodigy Communications ended up in tears and a lot of bad publicity. Forgent Networks has, since 2002, decided to sue 31 different companies for alleged infringement, but it hasn’t gotten very far.

The SCO case should also ring a few bells in the minds of executives in companies like Microsoft et al. that attempting to wipe out open source through constant litigation is not usually the best option. The steady torrent of bad publicity surrounding the case certainly hasn’t done SCO any favours. Microsoft would probably love to crush OpenOffice.org by launching a patent assault on it based on the Word, Excel, and PowerPoint file formats, but one would imagine that the coverage of this case wouldn’t exactly be in their favour.

The Linux community also has the backing of a considerable number of members in the big-business community armed with some pretty powerful patents. IBM, the world’s biggest software patent holder, has allowed a considerable number of patents to be used in open source software without fear of litigation, as have Sun and (more recently) Nokia, although Sun has recently signed an agreement with Microsoft not to sue for patent infringement in return for a reciprocal agreement. Let’s not forget prominent Linux vendors such as Red Hat and Novell who also have fairly formidable patent arsenals. Novell in particular has expressed an intense dislike of patents, but it won’t be afraid to use them if Microsoft or any other entity decides to try to destroy open source through litigation.

What would happen if someone stole an open format and tried to patent it? The answer lies in the concept of “prior art.” Open formats and techniques can be protected without patenting them simply by documenting them properly with dates. If someone against a particular patent can prove that it’s been done before, then the patent cannot be granted.

Bottom line — if open software infringes on a patent, change it so that it doesn’t. As history has taught us, if a patent is too open-ended, then any lawsuit is doomed to failure. If a patent is freely open to you to use as a developer, use it. If all this comes at the cost of interoperability with Windows, so be it. It’s painful, but the success of Linux, FreeBSD, and other open source operating systems cannot be shackled forever to Windows. People shouldn’t be switching to Linux because it is compatible with Windows; that fact should just ease the transition.

The open source community needs to show why people need to switch to an open OS on its own merits. What doesn’t kill open-source, will make it stronger.