"We choose to use software patents," you say. And when people ask how this is compatible with the needs of the FOSS economy you make a Promise not to sue those who have no money, and you explain, with words we have heard a million times from a million bullies with sticks and guns: "trust us, this is for your own defence".
Dear Red Hat,
Considering and understanding that:
- Your Patent Promise is not a license,
- it can be revoked at any time,
- it has no legal standing in many countries,
- it can be circumvented via 3rd party licensing,
- it can be circumvented by transfer of specific patent assets,
- it would not survive acquisition of your Company,
- it excludes many popular FOSS licenses,
- it excludes end-user closed source that builds on FOSS libraries,
- it excludes your business method patents,
- and that your paying customers are granted an actual license.
We ask, is your patenting activity not designed to reinforce and protect your commercial FOSS distribution and licensing business, rather than to "defend" free and open source software?
We ask you in the name of everyone who uses, distributes, or develops software:
- To demonstrate the "defensive" nature of your patents;
- To explain why you do not grant an irrevocable license in line with the GPLv3;
- To explain who you aim your business method patents against;
- To explain why you patent software and business methods in Europe;
- To explain why you patent old obvious techniques like SOAP-over-CGI;
- To explain why you patent close to emerging open standards;
- To explain why you are secretive about your patenting activity;
- To explain your use of existing mechanisms to protect Prior Art.
And we leave this page open to comments by those who would endorse these questions, defend Red Hat, or correct our understanding and interpretation of the Promise.
No comment
- Red Hat and software patents - "The cynical among us could even see this policy as a strike by Red Hat against a whole class of competing free operating systems." Posted June 3, 2002 by corbet, on LWN.
- Red Hat Patent Policy - "Our Promise: Subject to any qualifications or limitations stated herein, to the extent any party exercises a Patent Right with respect to Open Source/Free Software which reads on any claim of any patent held by Red Hat, Red Hat agrees to refrain from enforcing the infringed patent against such party for such exercise ("Our Promise"). Our Promise does not extend to any software which is not Open Source/Free Software, and any party exercising a Patent Right with respect to non-Open Source/Free Software which reads on any claims of any patent held by Red Hat must obtain a license for the exercise of such rights from Red Hat. Our Promise does not extend to any party who institutes patent litigation against Red Hat with respect to a patent applicable to software (including a cross-claim or counterclaim to a lawsuit). No hardware per se is licensed hereunder. Each party relying on Our Promise acknowledges that Our Promise is not an assurance that Red Hat's patents are enforceable or that the exercise of rights under Red Hat's patents does not infringe the patent or other intellectual property rights of any other entity. Red Hat disclaims any liability to any party relying on Our Promise for claims brought by any other entity based on infringement of intellectual property rights or otherwise. As a condition to exercising the Patent Rights permitted by Our Promise hereunder, each relying party hereby assumes sole responsibility to secure any other intellectual property rights needed, if any. … Open Source/Free Software means any software which is licensed under an Approved License." — From RedHat.com, 3-28-2009
- Red Hat clarifies that its Patent Promise extends only to suppliers - "Red Hat says that it keeps its patents only for defensive purposes - patent licensing by detente or mutually assured destruction. Why, then, has Red Hat refrained from explicitly making a promise not to assert any patents against anyone who does not first assert patents against Red Hat? Red Hat could even guard against a company selling its patent rights to a troll, by reserving patent rights against parties who do so." — From ACT Online, 11-27-2009
As far as I can read, the patent promise of Red Hat does not cover proprietary software.
So I would add:
9b. it excludes proprietary applications
This is perhaps covered by point 8.
End-user applications is not precise enough.
It has to be sharp, not fuzzy.
Could you give contact details in case someone from Red Hat wants direct communciations to publish a joint resolution on this question?
And second - is "We ask, is your patenting activity not designed to reinforce and protect your commercial FOSS distribution and licensing business, rather than to "defend" free and open source software?"
the only question you ask?
Jan Wildeboer
@jwildeboer:
There are eight non-rhetorical questions listed, but in fact the ten points are also questions: we would appreciate a confirmations or corrections of our interpretation of the evidence. Our apologies if this starts to look excessive.
When we started this investigation we were only interested in your stealthy patenting activity around certain open standards that you were helping to make. Today it looks like you have engaged since many years on a patenting strategy designed to promote your commercial Linux offerings. Not against Windows, but against other Linux distributions. We cannot criticize this - every business must seek its profits - but we do not see how a firm that over many years embeds software and business method patents into the core of its business model can claim to use them only for defensive purposes.
You may deny that you embed patents into your business. "They are defensive", you have told us, many times, as if this explanation was sufficient. Do you not offer your paying clients a license to your intellectual property? Does this not mean you are, in fact, licensing your patents as part of your business model?
Any firm involved with FOSS must choose: software patents, or Community. You can delay the outcome of the wrong choice. You can claim immunity through superior ethics. Many will accept this. But there will be a reckoning, there always is. Red Hat still has the chance to fix its policies and repair the damage of its past actions, such as seeking software patents in Europe while claiming to be against them.
You will recall another firm that seeks software patents around emerging open standards and then makes covenants to not sue developers. You have been a vocal critic of such promises, we hear. Rightly so: a promise not to sue those who are writing the code you live off is both a veiled threat to others, and a way to create fear, uncertainty and doubt in the community you claim to protect with your software patents. A promise not to sue is worthless, you know this, and you have said this many times about other firms. Yet when we raise very similar concerns about Red Hat, you accuse us, and you do avoid the questions.
That other firm also gathers "defensive" patents on obvious software ideas and business methods, just like Red Hat. Until recently, it had only ever been the victim of patent litigation, never starting its own, just like Red Hat. It claims to create a patent commons for its developers using its so-called "open source" licenses, just like Red Hat. It offers its paying customers a license to its intellectual property, just like Red Hat.
You will point to the differences. Red Hat invests in open source. Red Hat contributes to the Community. But so does that other firm. Maybe superficially, and recently. But the real investment in free and open software is not the work done by firms like Red Hat. Every software firm has always spent on software, for purely selfish reasons. The real investment is that done by volunteers such as the Debian maintainers, and this is what you threaten with your software patenting strategy.
Software patents are evil because they claim the work of many as the exclusive property of few. They are not a necessary evil, but an evil that feeds on greed and grows through silence. "Defensive" suggests we have no choice, but in this matter there is a choice and every time you file a patent on a software idea, or a business method, you state your choice clearly, and publicly.
"We choose to use software patents," you say. And when people ask how this is compatible with the needs of the FOSS economy you make a Promise not to sue those who have no money, and you explain, with words we have heard a million times from a million bullies with sticks and guns: "trust us, this is for your own defence".
If you seriously mean to patent for defensive reasons, stop filing business method patents, stop filing software and business method patents in Europe, work again with Abolitionist movement to end software patents, and grant licenses, not promises, to the all patents you hold.
If you seriously mean to patent for defensive reasons, make it unambiguous that your friends and natural competitors and their clients have absolutely nothing to fear from your patent arsenal. Make it binding, make it valid in all courts, and indeed, make it revocable in the case of a strike against you.
You have every chance to produce new information, statements, licenses, and policies: this is entirely up to you. All we can and will do to help you is continue to point out the faults in what you have today. Who we are is not relevant to what we say: this is not about us, it is about you.
Our questions are public: we ask that you make your answers so.
Some fo the questions raised hare have been answered numerous times over the past and do not need to be repeated here agin and again.
Whatever other answers will be needed will be published in an accountable and legally valid way.
I refuse to talk to people hiding behind a wall of anonymous blah who at the same time claim to represent whatever gorup. Your comments, dear WMGarrison are filled with accusations that have no sources and are the result of your whatever "analysis" that you refuse to open up for peer review.
This is my final comment here. I tried to establish communication, the way community works. You refuse this - so you are the one not respecting community principles.
Sincerely
Jan Wildeboer
@jwildeboer,
You flatter yourself by assuming we are interested in talking to you. Even if you formally represented Red Hat, which we do not assume to be the case, we are not interested in talking. This is not a tea room for old ladies to gossip on the latest market news. We want answers to our questions, which have been clearly presented, and so far you have not answered a single point of substance.
However, we seem to be making progress: you say that some of our questions have already been answered in the past, and others may still be answered, formally and on the record, as is fit.
We look forward to receiving pointers to those old answers, and the texts of the new ones, at your convenience.
We also invite corrections to any interpretation we have made. If there are factual errors in any of our analyses or conclusions, kindly provide us with notice, and we will after verification, issue a correction and apology. Absent such notices of discrepancies, we hold our texts to be accurate.
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