Posted by: commonsresource | August 12, 2010

A patently clear prescription for a pretty good night’s sleep – Open Source Software & Software Patents

As mentioned in yesterday’s post, I will be giving a CommonsKnowledge™ talk at Saturday’s fosslc.org Open Source Technology showcase – SC2010.  In addition, I will be participating in what will no doubt be an interesting session on intellectual property and open source software that afternoon.   I will be asserting the rather moderate often stated position of my blog that intellectual property is both the very foundation of the open source software movement and a potentially significant threat to the movement itself that needs to be addressed.  As I said in my The double-edged sword of enforcement post back in February:

I do find it curious that many individuals are simultaneously celebrating the triumph of the copyright regime in the Jacobsen case and rueing the “apparently” successful assertion of patents against Linux.  Since the OSS movement is, at its core, a creative licensing initiative with intellectual property as its very foundation, it is time for the community to adopt a more consistent approach.  While I am well aware of the many challenges that software patents bring to the OSS movement, it is time for the OSS community to come together to unleash its awesome creativity to address and overcome these challenges in a constructive and healthy manner that respects the double-edged sword of enforcement.

Or as I said in my subsequent Codecs, Codecs, everywhere post

the open source software world in general, and its codecs in particular, need to pay attention to the patent landscape. I continue to believe that the open source community should move beyond denial, anger, and depression and channel its creativity and energy into acceptance and even bargaining in this space.

I strongly believe that these words ring even more true in this post-Bilski era for the reasons set out in my Post-Bilski Buzz- next round in patents v. open source software post.

Since my frequent quip that “software patents are the only things that keep the open source software movement awake at night” is based on a spirited lunchtime address at Columbia University by law professor Eben Moglen from several years ago, I was intrigued to see him featured in the OSS and software patents: if you can’t beat ’em, join ’em post by Ryan Paul on Ars Technica’s Open Ended blog which gives the following summary of his talk:

The stalled efforts at legislative reform and the lack of clarity from the courts have made it increasingly clear that the patent system isn’t going to be fixed any time in the near future. Moglen contends that the free software community’s only recourse is to find innovative solutions that will work within the boundaries of the existing patent system. The outcome of the Bilski case suggests that fighting the patent system won’t lead to victory, but the system can potentially be adapted to serve open source interests—in much the same way that copyleft licenses rely on copyright law in order to function.

While I strongly encourage you to read the entirety of Ryan’s post (including his excellent analysis of the limits of Moglen’s prescribed Open Innovation Network-like patent pool solution), I confess that I am pretty shocked to find myself so closely aligned with Professor Moglen! And while Professor Moglen’s prescription may not be complete, I entirely agree with him that  “the free software community must not become complacent, because the problem will only be solved if people care and look for solutions”. I remain confident that this is truly the time for the “OSS community to come together to unleash its awesome creativity to address and overcome these challenges in a constructive and healthy manner”. By working together, we will be able to overcome the fear of software patents to arrive at a patently clear prescription for a pretty good night’s sleep!


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