Why software patents are evil

Yahoo's action against Facebook reminds us why most open source developers hate software patents -- and what one community has done about them

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Once a declining company becomes a patent troll, it's a sign that the ability of individuals to use human values to overcome reptilian corporate instincts has ended. Kodak lost any credibility with technology peers, and to my eyes at least the rest of its slide into chapter 11 was inevitable. So too with Yahoo, which is the Kodak of social media.

Software industry players build defenses against all this. They construct formidable patent shields, create patent pools like OIN, buy patent portfolios from others as Google has been doing, and more. Of course, the temptation to turn to the dark side and make money from what was once a defense is strong. But most companies just use their portfolios as a defensive measure.

Open source and patents
So what about open source communities? Cuban's hatred of software patents is common in the open source community, too. It's not that open source projects are opposed to innovation -- indeed, we're in a golden age of open source innovation. The problem is that open source software is defenseless against the anticompetitive abuse of patents.

There's often no entity to protect open source programmers, who come together to synchronize their individual motivations in seeing the software exist into a collaborative community, using the liberties guaranteed by open source licenses as the lubricant. When there is an entity, it's typically a nonprofit that's incapable of mounting a patent defense -- no money, no patent portfolio. The public nature of their work offers a small prior-art defence, but otherwise there's no way that the unjust-but-legal chilling of competition could be deflected if a corporation chose to attack.

Fortunately it rarely happens, but the potential persists. What can a community do? A stalwart of open source software, the Debian community, recently issued a policy statement on software patents for its members. In summary, it says to shun software patents, to reject attempts to force you to license them if you can, to avoid allowing fear of them to shape your actions as you can never truly know if they are applicable, and to use attorney-client privilege to protect you if you are ever concerned about them. Wise advice.

The only real protection is the goal Cuban is seeking: patent reform. I hope his gloomy diagnosis is wrong -- that it will take a commercial catastrophe to overcome the power of special interests in Washington and bring about workable reform. But as the EFF explains, the patent system is broken and reform is the only solution. We need it, before the Kodak of cloud computing comes along.

This article, "Why software patents are evil," was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.

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