Linux Versus Software Patents:

Overview

Presentation by Daniel Egger,

Chairman
Open Source Risk Management
April 1, 2005
 U.S. Software Patents are a Fact

• 15,000 Relevant to LAMP Stack

• 1,000 Relevant to Linux Operating System

(Code Licensed under GNU GPL)

• 200 with Colorable Claims on Linux OS

(OSRM estimates)
 Corporate Reliance on Linux
• By 2008, $35 Billion in sales of
applications running on Linux (Gartner est.)
• 65% of Corporate Web Servers Run Linux
• IBM, Oracle, etc., have invested Billions
in Linux
• Linux is going “Mainstream” in Global
2,000 IT Departments
Is Conflict Between Patents and
Linux OS Inevitable?

No: 14 Years of Peace

Yes: Big Money; “Freedom or
Death” Provisions of GPL
 NO
• The OS Code is Non-infringing
• Developing Non-infringing substitutes is
relatively cheap (done by volunteers)
• Many issued software patents can be
invalidated for obviousness or prior art
• IBM and Linux distributors will defend
their market
• Microsoft is bluffing
 Yes
• Too Much Money Now at Stake

• Even One Conventional Patent Licenses

Would Violate the GPL “Liberty or Death”
Provision

• Arguments for “No” are All True but

Irrelevant
 “Liberty or Death” Provision of
GPL:
• No patent license restrictions on
downstream distributees.

• Therefore, “global” patent settlements by

distributors are impermissible.

• Conventional judicial resolution will

trigger withdrawal of rights to distribute.
 Why “Breach and Pay” won’t
work for the GPL
• 14 years of customary law demonstrate the
GPL is a license or “permission,” not a
contract

• Even if it is adjudicated as a contract,

copyright holders in GNU C Libraries at
least (Stallman, Free Software Foundation)
will withdraw permission use.
 Rational Solution
• User-Based Collective Defense
• User-Based Settlements
• Price the Aggregate Cost of All Patent
Compliance into Enterprise Linux
• Costs are Modest -- $60/server (OSRM
estimate)
• For More information, including White
Paper on Open Source and Patents
• www.osriskmanagement.com
• For Copies of these Slides:
• Degger@osriskmanagement.com