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.