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From: Rob Landley <landley@trommello.org>
To: Daniel Phillips <phillips@arcor.de>
Subject: Re: large page patch (fwd) (fwd)
Date: Tue, 13 Aug 2002 09:09:44 -0400
Cc: linux-kernel@vger.kernel.org
References: <Pine.LNX.4.44.0208111555130.1233-100000@home.transmeta.com> <200208131351.g7DDpuf261384@pimout5-ext.prodigy.net> <E17eeow-0001y9-00@starship>
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On Tuesday 13 August 2002 12:47 pm, Daniel Phillips wrote:
> On Tuesday 13 August 2002 10:51, Rob Landley wrote:
> > On Sunday 11 August 2002 07:44 pm, Daniel Phillips wrote:
> > So you would object to microsoft granting rights to its patents saying
> > "you can use this patent in software that runs on windows, but use it on
> > any other platform and we'll sue you", but you don't mind going the other
> > way?
>
> You missed the point.  I was talking about using copyright against patents,
> and specifically in the case where patents are held by people who also want
> to use the copyrighted code.  The intention is to help keep our friends
> honest.

Does the little company that recently got a patent on JPEG actually used open 
source code in-house?  They might be a windows-only shop.  I don't know.

> Dealing with Microsoft, or anyone else whose only motivation is to
> obstruct, is an entirely separate issue.

Oddly enough, Microsoft isn't a major threat here.  They don't seem to want 
to lob the first nuke any more than anybody else here.  They have too much to 
lose.  If they unleashed their patent portfolio upon the Linux community, 
there are enough big players with their own patent portfolios and a vested 
interest in Linux to respond in kind.  (Microsoft is happy to rattled their 
saber about the unenforceability of the GPL, and threaten to use patents to 
stop it, but you'll notice they haven't DONE it yet.  Threats are cheap, in 
the legal world.  As far as I can tell, at least 90% of any legal maneuvering 
is posturing and seeing if the other guy blinks.  It's mostly a game of 
chicken, you never know WHAT a judge or jury will actually say, when it comes 
down to it.)

They can't go after the big players with patents anyway, they've already got 
cross-licensing agreements with most of them (which is the point of patent 
portfolios in the first place).  So it's only the small players they could 
really go up against, and they simply don't see those as their real 
competition except as allies to big players like IBM, HPaq, Dell...

And if they're going after the small fry, having already been convicted in 
court of being an abusive monopoly, they open themselves to a class-action 
suit by ambulance chasers working on retainer against the prospect of tapping 
Microsoft's deep pockets in a judgement or settlement.  (Sort of like suing 
the tobacco industry: it's not easy but lawyers still sign on because there's 
so much MONEY to be gained if they win...)  An explicit patent infringement 
suit does NOT give plausible deniability of the "you can't prove we didn't 
win simply because we were better in the marketplace" kind.  (You can't prove 
the tooth fairy doesn't exist, either.  Hard to prove a negative.)

Other than FUD, the more likely pragmatic problem is some small fry with no 
stake in anything who thinks he can get rich quick by being really slimy.  
Anybody remember the origin of the Linux trademark?  THAT is the most 
annoying problem patents pose, being nibbled to death by ants...

Rob
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