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Editor's Note: Seeking Patent Fire in the OSRM Smoke

Aug 06, 2004, 23:30 (37 Talkback[s])
(Other stories by Brian Proffitt)

By Brian Proffitt
Managing Editor

The last time I touched on the topic of OSRM and its planned sales of patent litigation insurance, I found myself grudgingly admitting that such a plan would likely be necessary for large enterprises to participate in. Today, after watching a week of activity surrounding this topic, I still reluctantly agree that insurance could be useful--but I have serious concerns about the way OSRM is delivering their message.

Earlier this week, OSRM released a study that indicated that there are 283 non-court validated patents out there that could directly effect the contents of the Linux kernel. Non-court validated, according to Daniel Ravicher, Senior Counsel of the Free Software Foundation, means that the patents have been filed but they have never been tested in a court of law as being valid.

The presence of these patents, 27 which are held by Microsoft, is not OSRM's fault. They have been there for some time, and anyone with the time and the resources could have gone out and located them. OSRM is bearing the brunt of a very negative reaction from the open source community and the media in what seems to be a case of kill the messenger.

Ravicher seemed angry when he spoke at Bruce Peren's State of Open Source press gathering on Wednesday, as he innumerated the points in OSRM's defense. I suspect that his anger was directed at the media and the members of the community that have decided to heap scorn on his clients, OSRM. I could be wrong. Maybe his shoes hurt.

Ravicher's arguments are indeed compelling. True, it is not OSRM's fault that these patents are there, and we should not blame them for making the public aware of their presence.

There is, unfortunately, the little matter that no one actually knows what these potentially infringing patents are, which makes OSRM look like a bunch of hucksters, but actually that's not their fault, either.

See, if you infringe on a patent and you didn't know about it, you would, if found guilty, get a fairly mild punishment. Ignorance of the law, in the US, is no excuse after all. But, if you know about the patent problems and still infringe, then you are automatically going to be up for three times the damages plus the cost of the plaintiff's legal fees if found guilty. So, OSRM is correct in not revealing the specific contents, because it could get a lot of people in a lot of trouble.

Some have raised concerns on conflict of interest on the part of some of OSRM's spokepersons. Initally, I had these concerns too, including about Ravicher, who is serving as outside counsel for the firm, while also serving as senior counsel at FSF and President and Executive Director of the not-for-profit Public Patent Foundation. Ravicher's role was doing this research paper for OSRM, and I think that this does not conflict with his FSF and PUBPAT activities.

Pamela Jones, editor of Groklaw, has also been malaigned by a few in the community for her relationship with OSRM as a Director of Research. Jones' role, she has informed me, is a bit mischaracterized by her position title. She is there to do research only and is not a director in the traditional sense. I asked her if she knew the specific patents referred to in Ravicher's report, and she said she did not.

"If I did know, personally I wouldn't want to say because it would put the world's programmers on notice of infringement, if any of the patents later were upheld, which could lead to charges of willfulness in any future lawsuit," she added.

Finally, there's Bruce Perens, who is charged with hypocrisy for "working as a shill" for OSRM. Why? First off, there doesn't seem to be any conflict with his present positions. He runs his own consulting company, does work for the Desktop Linux Consortium, is a Senior Research Scientist in charge of Open Source with George Washington University's Cyber Security Policy Research Institute, is a major stockholder in Progeny, and serves as Director of Software in the Public Interest, Inc. To me, these roles are very far removed from each other and do not lead to conflict.

That OSRM is out to make a buck with this is the thing that sticks in everyone's craw, including about Peren's involvement. Arguing the merits of a profit/non-profit business plan is pointless. Perens has been speaking against patents for years, right or wrong, and this new work is just an extension of that.

So if everything seems on the up and up, then why do I have a problem with OSRM?

Say I have a big, shiny, new pickup truck, It's red, it has chrome fittings, but no gun rack in the back. I get the truck registered. I have a license to drive the truck. I can drive the truck wherever I want to go. Over to the grocery store. Up to the lumber yard. Out camping in the wilds of Indiana. Through a crowd of people at at the outdoor art fair.

Wait? No? I cannot drive through a crowd of people? Huh. Imagine that. So, using a large vehicle intended for driving as a weapon of destruction is a bad thing, right?

Of course it is! Just as using a bludgeoning report of 283 potential patent suits to drum up business has possibly caused a similar amount of collateral damage in the open source community.

Here's why: when I spoke to Daniel Egger earlier this year regarding the role of OSRM and its planned insurance policies, he empahsized quite strongly that this insurance would only be needed by enterprise-level customers, as they would be the deep pockets a patent litigation lawyer would go after. Again, makes sense. But when the report was released earlier this week, did OSRM think about the fact that the small- to mid-sized businesses would see this report and have very strong concerns about this?

Yes, it's one thing to say, "only large companies should worry." But if I am the owner or IT manager of a non-enterprise business and I read about potential lawsuits if I deploy Linux, am I really going to that that risk? I might just stick with Windows, thank you very much. I have heard anecdotal evidence of at least three small companies that have placed their Linux deployment plans on hold as a direct result of this report's release. There could be more.

(In case you are wondering, the report is not the reason Munich froze its migration. Apparently, members of the city council want to get the German government to not ratify the proposed new European patent regulations, and they are holding up the Munich transition as an example. Personally, I hope they succeed.)

OSRM may be in the right as far as what they want to do. That is not for me to say today. But they have delivered their message in a way that is likely to slow down and in some cases halt Linux migration plans. This is rather irresponsible on their part.

If you are going to shout fire in a crowded movie house, then you'd better make darn sure that fire is real. If the threat of patent litigation is real, then OSRM's message is indeed very important. But the way it is being delivered may cause more panic than is warranted.