3. Our friends, the software patents

While some people believe that the diminishing factors in the mass adoption of Linux and of other open-source operating systems are the lack of the drivers for some of the devices used with Windows, or the lack of enough games under Linux, or even the apparent difficulty in setting it up on some platforms, all I can see as a major hindrance is this one: software patents.

While the United Kingdom's PM had a prompt response to a petition, just to confirm that «the Government remains committed to its policy that no patents should exist for inventions which make advances lying solely in the field of software», and that «although certain jurisdictions, such as the US, allow more liberal patenting of software-based inventions, these patents cannot be enforced in the UK», the major Linux actors are U.S.-based (Red Hat, Novell), and even the FreeBSD foundation is an American subject (a notable exception: OpenBSD is a proud product of Calgary, AB, Canada).

Therefore, the mainstream Linux distributions cannot afford to include patent-encumbered code, no matter what third-party extra packages might you add, as a non-American end-user.

This wasn't such a big problem a decade ago, but it is now. Except for patent-free multimedia formats such as OGG/Theora, the vast majority of the most popular audio and video formats are either covered by one or more patents, or they're not open-source at all: MP3, MPEG, WMA, WMV, AVI. Almost 100% of the websites will only provide media in formats like WMV or MP3, which is something delicate for the enterprise Linux user, especially when in the United States.

But wait! Aren't the patents a Capitalist system meant to protect innovation and to provide with the necessary incentive to keep it happening?

It was indeed supposed for a patent to protect the creator and to reward the creativity. The US Constitution states in Article 1: «Clause 8: To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.» Abraham Lincoln, himself a patentee, said: "The patent system added the fuel of interest to the spark of genius."

That was once, over 200 years ago, when software was not born. It's the fault of the American mentality, tributary to the idea "What was said by the Founding Fathers of the Nation should not be questioned, the same way we don't question the existence of God." Indeed, the U.S. Constitution (with its Amendments) is like a second Bible to Americans. Contrary to the very basic principles of the democracy, there is this religious feeling that the Constitution should never change.

This makes the U.S. Patent and Trading Office practically an institution appointed by the Constitution. And nobody would ever manage to make it refuse to register software patents!

Maybe sticking to the tradition is a good thing. What makes a software patent so different?

The first possible answer is a rational one: some people consider software as a collection of mathematical algorithms and data structures, and none of them are patentable under the current law. The USPTO is however part of the Department of the Commerce, and it seems they can't understand mathematics, nor programming. As the number of the patents granted in the last years increased exponentially, they were obviously poorly processed, so that they granted both patents closed to the perpetuum mobile, and software patents about linked lists (PN/7028023, PN/5263160, PN/5446889, PN/5671406, PN/5950191, PN/6301646, PN/6581063, PN/6687699, PN/6760726). Notice how the undertrained patent examiners are easily fooled by the magic wording "method and apparatus".

The second answer would be an experiential: software patents are bad because we can see how detrimental they are to the advance of the IT!

A recent situation involved some of the mainstream distros (openSUSE, Fedora) disabling a ClearType-like pixel sub-hinting method in the open-source FreeType2 library: openSUSE Hobbled by Microsoft Patents. While the details of the issue are beyond the scope of this discussion, this reminded me of a third possible argument: why should the end-user bother with patents included in the software he's using?

Since the most absurd lawsuits of the latest two millenniums, the SCO vs. IBM, SCO vs. Novell, SCO vs. Daimler-Chrysler, and SCO vs. AutoZone, proved that common sense and the U.S. law system have not met yet, some vendors of open source software and services became aware that corporate customers might feel unsafe to use open-source software, because as long as the code is widely available, possible patent-infringing code snippets could be identified at any moment.

This is only one of the reasons the last year's Novell-Microsoft interoperability agreement and patent covenant was signed: Novell wanted to give to the customers of its commercial Linux solutions the feeling of safety: no, they will never be sued by Microsoft for any alleged patent that Linux might infringe!

Given the number of the lines of code in Linux, nobody can tell how many algorithms might be covered by a U.S. patent belonging to a Fortune 500 company. As a matter of fact, Steve Ballmer explicitly stated that Linux infringes Microsoft patents.

And here we go back to the previous question? Why should the end-user be liable for a possible patent infringed by the software he is using, being it free or commercial software, as long as it was bought and used in bona fides?

Common sense and the logic of the judicial system don't mix that often They might say: because the software is open source, so you have had the means to become aware it's infringing some patents! Along with the vendor (if any), you are liable.

This quick reasoning might work for situations when you're buying a pack of cocaine labeled "Soap", and you claim innocence because what you bought is soap! Of course nobody would buy it, because it's trivial to notice you have not bought soap, but cocaine, thus possessing it is a clear violation of the law.

But is the end-user of a software product responsible for examining it against possible patent violations? Just how far can we go with the absurdity?

Following the same rationale that says Linux users should be liable for patents infringed by Linux, consider the following case: you're buying a car manufactured by Ford, and it happens that the car includes some special screw that is patented by Toyota, and illegally used by Ford. Should you, the end user, go to jail for the patent infringed by a screw present in the car bought by you?

Don't let an American attorney of law read this: he might answer "yes".