Software patents: Stifling innovation with threats and bluster

On Friday, FSFE’s Hugo Roy posted an open letter to Apple CEO Steve Jobs, asking him why Apple was claiming to like Open Standards while using H.264 as a standard for video compression on Apple’s devices. Jobs replied, saying that “[a] patent pool is being assembled to go after Theora and other open source codecs now.” The news spread like wildfire.

This episode provides a good example of how software patents harm innovation and why they are ultimately incompatible with Free Software. Any program – Free Software or not – is threatened by patents. They hinder rather than encourage the development of new technologies. They add legal risk and therefore cost to software development. At the same time, they inhibit compatibility and interoperability.

Software patents and blackmail

From a very practical perspective, it is next to impossible to determine whether a given piece of software violates patents. A typical program consists of dozens if not hundreds of ideas. Any of them could be patented. In practice, making sure you’re not infringing a patent simply takes too long, and is too expensive. So nobody does it.

And I do mean nobody. Even the largest corporations can’t stay clear of each others’ software patents – over the past few months alone, we have seen lawsuits between Apple and HTC , Red Hat vs. IP Innovation LLC (now that’s a name for a patent troll. Well, they went home with a ringing defeat. Congratulations to Michael Cunningham, Rob Tiller and the rest of the Red Hat legal team!), and the Apple vs Nokia sue-fest.

But corporations sue other corporations only as a last resort. Jonathan Schwartz, Sun’s former CEO, illustrated quite pointedly how large corporations normally deal with this problem: They simply threaten each other with their different patents until both agree that it’s better to stay quiet.

Bill Gates was quite right when he said 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 stand-still today. […] A future start-up 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.”

[Internal Microsoft Memo (1991), quoted in Fred Warshofsky, The Patent Wars (1994)]

For a company like IBM, Apple or Microsoft, patent lawsuits are a huge problem. For any organisation smaller than that, they’re an existential threat.

All this turns spreading fear, uncertainty and doubt about software patents into a marketing strategy. As Jobs has done, you simply have to say “we know your stuff is infringing patents, but we’re not telling you which ones”. This is a callous strategy to make your target’s customers and users think they are under some sort of legal threat.

There’s a word for that. It’s called blackmail.

Now, back to Theora

Pulling back to the specific issue at hand, we need to remember that Theora is not subject to patent licensing. The important question may not be whether Theora infringes on some patent or other, but whether it would be in anyone’s interest to enforce those patents. If any patent pool (whether the MPEG-LA or someone else) were to take legal steps against Theora, they would have to disclose exactly which patents are involved.

An attack on Theora could thus backfire on anyone holding patents in the area. It would force the court to clarify whether there is prior art, and what exactly the scope of the claimed patent is. This could mean that the patent at stake would finally be judged invalid. Whoever is behind the mysterious patent pool Mr Jobs claims to know about would have killed the goose that lays the golden eggs.

For anyone pushing a competing video standard, such as Apple, it is more effective to simply make unsubstantiated threats. This is the same strategy which Microsoft is using when it claims to hold patents on the Linux kernel: “We won’t say whether you’re actually violating anything. But why don’t you just sign here and agree to a joint press release with us, and we promise not to bother you about it.”

I should note that standards such as H.264 could just as likely be accused of patent infringement at any time. Just because a standard calls for licensing fees does not mean that the users are safe from legal risk. While such an attack may or may not happen in the future, licensing fees are a near-certainty. It hardly takes economic genius to determine that when enough people and works are locked into H.264, the MPEG-LA will have every incentive to start charging any fee they please. (Oh, and don’t you dare use that expensive camera for professional purposes. Your H.264 license is purely for non-commercial use.)

Instead of relying on the false sense of security that a licensing agreement conveys, it’s better to rely on Open Standards such as Theora, and to defend them when it becomes necessary. The Free Software community should not give in to blackmail.