Jamie McCracken (jamiemcc) wrote,
Jamie McCracken

Surely the internet makes software patents obsolete?

At least for internet connected devices. I mean why is it that companies bother fighting or capitulating when they could simply outflank the bastard patent trolls at no cost to themselves?

Armed with the internet, any half knowledgeable person can easily download copyrighted movies and music such that copyright protection itself is under threat. But for software patents its much much worse - in fact its so bad for patent trolls that software patents should be obsolete and totally worthless

IANAL but consider the case of a smart phone (or tablet or other mobile device). Surely all that needs to be distributed with the machine is a boot strap with a bare bones OS and the simplest of apps which are completely non-infringing on any patent held by a known patent troll . On startup, the machine just needs to be smart enough to inform the user they can download a fuller version of the OS + a whole host of apps which can infringe all they like of course. Provided the download server is out of the USA, there's bugger all a patent troll can do.

After all he cant go the US ITC to ban the imports nor can he sue the manufacturer, distributors or retailers cause the machine does not infringe anything. The only person who could be sued is the person who downloads the extra stuff but of course theres no way of finding that out nor would it make economic sense to sue them even if they did (the license fee a troll could expect to extract would be paltry compared to the court costs for the patent troll - they would go bankrupt very very quickly!)

If Google was smart, it should do something like the above for the forthcoming Android 3. The bare bones OS on it should not have any Java or things like the encumbered FAT filesystem but just the bare necessities to make it a phone without the smarts (and without infringing any patents of course). Then stick all the juicy patent encumbered stuff on a non-USA server for easy download and Bob's your uncle!

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October 5 2010, 05:27:57 UTC 11 years ago

You are right. You are definitely not a lawyer. :) You are making a few BIG assumptions that are incorrect.
Care to elaborate on whats incorrect?

There are already existing examples of where such circumvention is being done - notably several linux distros include a shell script that can download the encumbered DeCss for playing encrypted Dvds even though they dont ship with DeCss by default. I dont know the legalities of this but I can only presume that distros do and they dont hide that script.

For a start, Google - which very much wishes to retain its control over Android (both the project and the mark) - is a US company. For this dodge to work, it would have to provably have no connection to the entity from which you would be downloading the operating system in question. Which would mean said operating system would effectively *not* be under Google's control...and if it wanted people to refer to said operating system as 'Android', it'd have to grant a rather wide license to its Android trademark to said other organization (to which, once more, it could have no connection).

Actually even that legally probably wouldn't be enough to cover Google's ass, but you can surely see that Google would never be willing to sign up to such a thing, and neither would anyone else.
Well you are right in that US law only applies to US companies. However Google can have overseas division or offshoots that American law cannot touch. There's nothing stopping google from moving android development offshore where US patents cant touch it. However Google is not really the issue here (it can afford to defend or license patents for itself) - its the carriers who's imports are threatened by injunctions and where all the patent attacks excpet oracle's are aimed at and thats easily solved by doing what I say above. It would most definitely prevent the likes of apple and microsoft from taxing those imports
On the other hand, decss do not infrige any patents, afaik. More ever, being out of the USA didn't prevent a lawsuit. And even when you don't lose, a lawsuit can be quite expensive.



11 years ago


October 5 2010, 06:44:11 UTC 11 years ago

No. This is called inducing infringement, and leaves a company just as liable as actually distributing the entity.


"Induced infringement can only be alleged where there is some positive act of inducement by the person being sued to another to carry out a direct infringement of that which is claimed. Such a positive act may be in instructing, directing or advising the third party as to how to carry out a direct infringement. Since an amendment to the law in 1984 it has been an act of infringement to supply in or from the United States all or a substantial portion of the components of a patented invention in such manner as to actively induce the combination of such components outside the United States in a manner that would constitute infringement if carried out inside the United States. That is to say one can not supply from the United States a kit of parts with instructions to assemble them to produce something which if produced in the United States would be a patent infringement."
"That is to say one can not supply from the United States a kit of parts with instructions to assemble them to produce something which if produced in the United States would be a patent infringement."

But you would be supplying from outside the US, surely?


October 5 2010, 16:07:39 UTC 11 years ago

No, because the phone sans the international component would be an integral part of the domestic component. If you posted an application and all it had was a button that said "Download this song illegally, at your own risk" you'd still be sued and lose, because you're essentially being an accessory to the act;


11 years ago


11 years ago


October 5 2010, 06:57:40 UTC 11 years ago

Good idea, I am going to fill a patent "Small OS that download itself at boot." :)
- Cyrille Berger Skott
I'm getting sick of hearing about software patents - especially in open source where everyone's always going about how you can't include this or that in a distro (Mono for instance) because its patented. What no one seems to consider is this: Linux is quite widely using in europe, which has a larger total population than the US. YOU CANNOT PATENT SOFTWARE IN THE EU. Period. Software patents simply do not exist. You can copywrite software of course, but not patent it. Big difference. A free implementation of a specification (such as Mono/.net) is completely safe - no one can sue for patent infringement.

So here's a thought: until the states sorts out its patent system, can we in the EU be spared the patented software debates and let us use all the cool stuff we want :)
"YOU CANNOT PATENT SOFTWARE IN THE EU. Period. Software patents simply do not exist."

Practically speaking, yes, you can. Lots of software patents have been granted in the EU. They're arguably invalid, but invalidating them would require an expensive court case, so small companies and free software projects cannot try. Whether the patents are valid or not, they exist, and by existing, they exert an influence.

"So here's a thought: until the states sorts out its patent system, can we in the EU be spared the patented software debates and let us use all the cool stuff we want :)"

Aside from the above, there's another reason why the answer to this is 'no'. Lots of important and popular software is developed in the US, and even that which isn't is usually distributed there. Unless you develop your software entirely outside the US and never distribute it in the US (and have the money to legally invalidate any European patents you're claimed to have infringed), you have to worry about patents, and that affects most of the software in the world in the end.


October 5 2010, 07:48:59 UTC 11 years ago

Ever wondered what kind of message is would send to the goverments here in Europe? US would try to push their software patents even harder.

-- patrys
I doubt that - Its well know in europe that the US system is idiotic


October 5 2010, 08:23:25 UTC 11 years ago

Yes, you are definitely not a lawyer.

You are suggesting that the solution to the legal problem of software patents is to sell devices with instructions that advocate the mass criminal activity of downloading infringing content (or content without care of infringing), but to do so from servers outside your jurisdiction.

That is not a solution, and the response of patent holders is too blindingly obvious.
criminal? For a non-US company there is nothing criminal in this. The internet allows one to make irrelevant the insane and retarded software patent system that no other country implements.

The fundamental point is that the US ITC can only block physical imports and not electronic means. EG I could sell software electronically to the US and no patent holder could touch me if I was not located in the US. (they could of course go after the purchasers) - this is not criminal but exploiting a loophole in the system