Thursday, May 30, 2013

Software Freedom Law Center effectively blesses Microsoft's Android and Linux patent license deals

After many years of fundamentalist opposition to patent licensing it appears that Free Software advocates have become more pragmatic and now, at long last, tend to appreciate the benefits of patent license agreements and recognize what they usually denied in "open standards" policy debates around the world: that FRAND licensing terms for patents that read on Free and Open Source Software (FOSS) can actually contribute to the freedom of software distributors and users.

The Software Freedom Law Center (SFLC) is run by Professor Eben Moglen, Richard Stallman's co-author of the GPLv3, the most anti-patent FOSS license. SFLC provides legal advice and defines its mission as "helping [FOSS] projects reach their long-term goals safely and efficiently so hackers can concentrate on making great software". In a response to Open Source Initiative (OSI) chief Simon Phipps's criticism that Google's proposed VP8 patent license is overly restrictive by FOSS standards, SFLC's Senior Staff Counsel Aaron Williamson writes:

"Because the patent license does not restrict those freedoms, but rather affords some new, limited protections to users and developers within the field of use, it improves on the current situation. Without this license, the patent holders would be in a position to threaten those users and developers as well as others. [...] [U]ntil software patents no longer threaten FOSS, we will look for every opportunity to preserve community development from their destructive effects. The VP8 cross-license provides such an opportunity, in an area of particularly active patenting."

This is, in fact, a ringing endorsement of Microsoft's patent license agreements with Android and Linux device makers (note that Android includes Linux, which is distributed under the Free Software Foundation's GPL license). Last month ZTE became the 20th Android device maker known to have taken a royalty-bearing Android patent license from Microsoft, and Microsoft previously announced license deals involving non-Android variants of Linux (examples: Amazon, Brother, Casio, Kyocera, LG, Samsung).

The logic of the SFLC's defense of Google's proposed VP8 patent license agreement as being "compatible with FOSS licensing" also applies perfectly to Microsoft's Android and Linux patent license deals:

  • Just like the proposed VP8 patent license is a separate license from the software copyright license, Microsoft's Android and Linux patent license agreements are separate from the copyright licenses governing the open source distribution of Android/Linux.

  • Just like the licensees under Google's proposed VP8 license, Microsoft's licensees are "not [...] required to pass on any restrictions limiting users' rights to copy, modify, and redistribute free programs" (if Samsung et al. imposed any such restrictions, we would know). Instead, users "have the same rights as they would if the [device makers] had never accepted the patent license".

  • Just like video codecs are "an area of particularly active patenting", so are smartphones (which according to patent aggregator RPX potentially infringe a quarter million patents). In fact, smartphones are an area of far more active patenting because they include video codecs but also numerous other technologies in fields of active patenting.

  • Just like the proposed VP8 license, Microsoft's Android and Linux patent license agreements "do[] not restrict [FOSS] freedoms, but rather afford[] some new, limited protections to users and developers within the field of use", which in the SFLC's opinion "improves on the current situation".

Of course, the terms of Microsoft's agreements with Android/Linux device makers aren't known -- nor are the terms of Google's agreement with 11 MPEG LA patent licensors. All that we can see from the outside is what the respective licensees do or don't do. Do they impose restrictions? No. Do end users have to pay separately? No, someone takes care of this for them. Does this mean third parties can do anything they want without possibly needing a new license from the relevant patent holders? No. Nor are they free to "do anything" under the VP8 patent license agreement.

With a vocal part of the Free Software ecosystem agreeing that patent licenses are preferable over litigation, and confirming that patent licenses wich don't result in a modification of software copyright licenses actually "afford[] some new, limited protections to users and developers within the field of use", licensing is more popular than ever. Once Google's Motorola Mobility also takes such a patent license, it will be difficult to come up with anyone else who could lend a meaningful endorsement to this commercial practice (which is also accepted in all other fields of technology).

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