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Court decisions on free and open source software licensing are unusual, and for lawyers who represent open source companies and projects, somewhat anxiety producing. Fortunately, lawsuits over such licenses are rare, because the licenses are effectively enforced informally to the extent necessary by the free and open source community and disputes are generally resolved informally. This is a positive thing; lawsuits are unbelievably wasteful in terms both of money and spirit. But as a consequence, there are few court decisions to serve as legal precedents.
This creates some uncertainties when a case gets to court. Free and open source software is still a relatively new paradigm. A court coming to the area for the first time may not immediately comprehend this paradigm, and in deciding a given case may draw on analogies to older legal rules that do not fit well. That court may just get things wrong. The effect of a single wrong decision is likely to be magnified, because a later court will be more likely to rely on that decision when it is one of few.
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Last month, we announced that Red Hat had settled a patent infringement case with an agreement that was significant in fashioning a new model for protection for the open source community. In the agreement, we obtained coverage not only for Red Hat, but also for upstream and downstream members of the community involved in developing, using, modifying, and distributing code included in Red Hat’s products and in the community projects that Red Hat sponsors, including Fedora. We demonstrated that it is possible to satisfy the letter and spirit of GPL licensing in resolving patent litigation.
The free and open source software community is a spirited, independent-minded group of people who think for themselves. It is not surprising, therefore, that there have been numerous questions about the agreement and requests to make it publicly available. In the spirit of freedom and openness, we are happy to make the agreement public today here. We hope it will be a useful tool both in addressing existing legal threats and also in suggesting methods for addressing threats as yet unknown.
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Today, Red Hat took a public stand challenging the standards for patenting software. In the Biliski case that is now before the Federal Circuit Court of Appeals, this patent issue is ripe for consideration. In a friend of the court brief submitted to the Federal Circuit Court of Appeals in the Bilski case today, Red Hat describes the special problems that patents pose for open source and seeks modification of the standards for patentable subject matter that take open source into account. Here is a quick summary of our brief.
Open source software is one of the most dynamic, innovative sectors of the U.S. economy, but the U.S. patent system is a costly hindrance to open source innovation. We believe that although the patent system was created to foster innovation, it’s simply not an engine for innovation for open source. Software patents were barely recognized when open source began, and so the hope of obtaining a patent did not motivate the first developers. Those pioneers were generally opposed to software patents. The open, collaborative activity at the heart of open source is at odds with the patent system, which excludes the public from making, using or selling a patented invention. Open source developers seek to contribute code to the community – not to exclude others from using the code.
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