Due to its unique nature, FOSS touches on more than just national ICT policy. Particularly in the area of Intellectual Property Rights (IPR) as well as in other areas such as consumer rights and international trade, FOSS can wither or thrive depending on the specifics of the policies implemented. In this section, we look at some of the important non-ICT areas that must be aligned with national FOSS goals.
Software and business process patents are particularly dangerous to FOSS for two reasons: FOSS developers rarely patent anything, and paying for patent royalties is impractical with FOSS software. Because of this, software companies threatened by FOSS can utilize software and business process patents to stifle FOSS development.
The nature of FOSS development is open and cooperative, with many individuals and organizations involved in the process. These communities rarely file patents for any of the ideas that they produce. Besides disrupting the cooperative nature of FOSS itself, patents are expensive to file. In the United States, the absolute minimum for a successful patent hovers around $1,025. Most patent filers utilize the services of specialized patent attorneys and this greatly increases the costs to between 8,000 and US$30,000 per patent. As can be expected, few FOSS patents are filed and FOSS is often defenseless against patents that competitors may possess.
FOSS is also unable to pay royalties on patents held by others. Royalties would restrict the ability to freely redistribute the software, destroying one of the fundamentals of FOSS. Royalties are also incompatible with some of the major FOSS licenses. It becomes extremely costly for distributors such as Debian, a non-profit community organization, to track, collect and pay royalties every time someone shares a copy of Debian’s software with someone else.
Note that FOSS is not affected by traditional patents covering inventions, manufacturing processes and most other tangible patents. It is primarily the patenting of software and, to a lesser extent, business practices that threaten FOSS. If software patents are allowed within a country’s legal system, FOSS adoption may be severely threatened.
Software patents are a relatively new concept and have been controversial from the very beginning. Software patents are not currently common outside of the United States, though efforts to introduce them are in progress worldwide, usually lobbied for by large multinational corporations.
In the United States, software could not be patented until the 1980s. Before this, patents could not be granted on scientific truths or mathematical expressions of it. Patents were granted on processes, machines, articles of manufacture and compositions of matter. Software was considered as mathematical algorithms and not patentable. This changed in 1981 when the US Supreme Court compelled the Patent and Trademark Office to grant a patent on an invention that utilized computer software in Diamond v. Diehr. Since then, software patents have become more and common, with thousands of them being issued in the United States every year.
Source: The History of Software Patents
Richard Stallman of the Free Software Foundation notes that patents are also a threat to small and medium-sized companies that develop or use software. The Foundation for a Free Information Infrastructure (FFII), a European grouping of over 1,000 small companies and 60,000 individuals, is fighting the introduction of software patents into the European Union and has collected an extensive array of resources arguing against software patents. One of the more telling quotations in their resources is attributed to Microsoft’s Bill Gates in 1991:
- If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today. ... The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors.
Full details can be found at the FFII site at: http://www.ffii.org
Copyright law is fairly standard throughout the world. However, there are a few areas where copyright laws differ somewhat and therefore affect FOSS in different ways.
- Derivative Works
- There is sometimes ambiguity over what constitutes a derivative work in software. This has consequences on some of the most popular FOSS licenses, including the Free Software Foundation’s GNU General Public License (GNU GPL). The GNU GPL has a provision requiring that all derivative works of GNU GPL software must be released under the GNU GPL. The definition of derivative works is not consistent worldwide and this may not be applicable in every nation in the world. Clarification of these issues may be necessary to ensure that the legal basis of FOSS licenses is strong in the country.
- Reverse Engineering
- Reverse engineering is the method of taking something apart in order to figure out how it works. Most copyright laws allow some form of reverse engineering, especially for interoperability and compatibility reasons. However, some recent laws, particularly the Digital Millennium Copyright Act (DMCA) in the United States, have placed restrictions on reverse engineering. This directly impacts FOSS as its interoperability with proprietary software often comes about through reverse engineering proprietary protocols and data standards. If reverse engineering is prohibited, proprietary software producers are able to erect barriers to keep FOSS (and other proprietary competitors) out of their markets by using proprietary communication protocols and data standards. This would make it easier for vendors to lock their customers into their software solutions.
Overly aggressive consumer protection laws can also destroy the FOSS industry, particularly with regard to implied warranties. This is ironic since FOSS tends to give consumers far more rights than proprietary software does.
Certain countries are either considering or have enacted laws that do not allow software distributors to totally absolve themselves of liability, should their product not work as expected. Doing so would result in almost no software being released as FOSS, since software producers are unable to handle the legal liability involved when the software can be freely distributed to just about anyone and used for any purpose. Such laws are also incompatible with many FOSS licenses.
It should be noted that nothing prevents a commercial FOSS company from offering warranties and assuming liability risks on software that they sell. Many companies such as Red Hat, SuSE or Mandrake offer industry standard warranties. However, individual projects or non-commercial community distributions such as Debian cannot do the same. Mandating such a warranty for all would seriously cripple the FOSS community as it would then be impossible for anyone other than large corporations to participate in FOSS development.
- “How Much Does A Patent Cost?”; available from http://www.ipwatchdog.com/patent_cost.htm