December 1, 2000

Steal this code: Open Source vs. patents

Author: JT Smith

- By Dan Berkes -

In 1976, Bill Gates wrote an angry letter to the "computer hobbyist" community when users obtained his BASIC code at no charge. If that had happened in 2000, Gates would have (and through Microsoft, does) aggressively patented his code, and served up a plate full of lawsuits for copyright infringement.To protect its virtual assets, companies have responded by obtaining sometimes-absurd patents, writing conflicting and confusing licensing agreements, and pressuring elected officials to modify copyright code.


Software and technology patents have gone to some rather absurd extremes over the last few years. Online retailer Amazon, for example, was able to patent a single mouse click. The company was able to claim that its "one click" shopping method was so unique and original that it deserved the legal protections afforded a patent.

Amazon generated no small amount of ill will by patenting what, to many, seemed like a method of Web browsing that was anything but unique or original in nature. At least they were up front about their reasons for doing so: There's money involved. Indeed, the bookseller has already licensed its freshly patented idea to Apple for use in the computer makers' own online storefront.

In an open letter to the Internet community, company CEO Jeff Bezos manages to defend his company's patents while proposing sweeping reforms at the same time. From the tone of the letter, readers might speculate that Amazon is essentially admitting that it pulled a quick one on the patent office.

Problems will also arise when patent holders are less than vigorous in defending their intellectual property. In 1985, Unisys acquired a patent for its Lempel Ziv Welch, or LZW data compression and decompression utility -- the algorithm at the heart of the GIF file format, and a globally accepted graphic file standard.

About a decade after CompuServe created the GIF file format using the LZW algorithm, Unisys woke up and decided that it was high time to enforce its patent. Initially, the company said that it only wanted to collect licensing fees from software developers.

In 1999, the company decided that not only was it going after developers, it would also seek compensation from the commercial users of such programs as well. Although Mark Starr, Unisys' general patent and technology counsel couldn't comment on specific cases, he did confirm that the company is, indeed, pursuing claims against several users of unlicensed graphics tools that use the LZW algorithm to create GIF images.

Not even Unisys is immune to claims of contributory infringement. Starr mentioned that the company is facing similar action regarding the technology it uses for several of its products. "We're not happy about it," says Starr, "but these companies clearly have the legal right to protect their patents."

Waiting in the wings to replace GIF as the de facto Internet graphics standard is the freely available and Open Source Portable Network Graphics, or PNG, image file format. The Open Source community has long known of PNG's superiority over GIF images.

In this case, the actions of Unisys can be said to have been beneficial to the Open Source community. Thousands of users who would have had no other incentive to use PNG quickly adopted this new file format in an effort to sidestep any messy licensing issues.

"The examination process for software patents is a sham," says California-based software developer and inventor Raph Levien. "Probably half of the patents I've read are clearly invalid to anybody who knows the art."

Software patents may be going the way of the dinosaur -- at least in Europe. In November, the member nations of the European Union voted unanimously against an extension of the patent system to software.

"We are still very far from a decision to ban software patents in Europe," said Stéfane Fermigier of the EuroLinux activist group. Considering that the European Patent Office is already granting patents on certain software methods, the recent vote was more of a delay against making an actual decision rather than passing any law.


Promising to complicate matters further is the Digital Millennium Copyright Act. Enacted in the United States in 1998, the law was designed as an update to national copyright laws.

In part, the law reads: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." This is further expanded to mean, " descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright holder."

The DMCA and the Open Source community collided during the summer of 2000 when a federal judge ruled that Emmanuel Goldstein of 2600 Magazine broke copyright law for posting and then later linking to DeCSS, a DVD decryption program.

Goldstein played no part in the creation of DeCSS -- the program was written by Jon Johansen, a 16-year-old programmer from Norway. Goldstein merely provided access to the code that would have been part of a set of programs allowing Linux users to play DVDs on their systems.

Under the DMCA, plaintiff Motion Picture Association of America didn't have to prove that that DeCSS was ever used to make illegal copies of movies. As long as the MPAA could prove that there was a possibility that DeCSS might be used to subvert its proprietary DVD encryption, the film organization could ask the court to make merely pointing in the direction of the code illegal -- even if the program was used solely to view legally purchased DVDs.

Rejecting Goldstein's claims of fair use and First Amendment free speech rights, the judge wrote that DeCSS had violated the anti-circumvention clause of the DMCA and amounted to little more than stealing.

Will honest to goodness patent reform ever happen? Unisys' Starr says he doesn't think so and furthermore, he doesn't think it should happen. "Some people wouldn't be doing the work that they do if a patent isn't there to protect it."

The same could be said for copyright regulations that, if anything, have become more restrictive over the years. The likely and depressing certainty of the matter is that the matter of interpretation and enforcement will be increasingly left to the court system to figure out.

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