Over the last couple weeks I have been giving more thought to open source software and what, if any role it has to play with respect to the economic future of both start-up companies and established giants.
My belief is that open source can and should play a vital role in innovation, but the way it is by and large carried forward today does little to forward innovation and an awful lot to significantly disadvantage start-up companies. The horribly bad advice that pervades the open source community and the utter lack of knowledge or familiarity about patent law is staggering. I don’t begrudge anyone who doesn’t like the patent system, but can you please at least not like it for a valid reason? With the myths and disinformation spewed by those who are either clueless and loud, or those who know better and have an agenda, are drowning out rational debate and significantly impeding progress and innovation.
Just the other day I received an e-mail from an individual asking a few questions about my opinions and views of open source software. I had been planing on writing about this for a while, and this is what prompted me to stop thinking and start writing. Nevertheless, one of the statements posed in his e-mail was this:
Most of the Open Source lawyers advise that Open Source projects should not do any patent search around their technology area, because this could make them “knowing infringers” if they miss something or misread something.
I don’t know for certain that this is an accurate statement, but it does ring true with a number of things I have heard, both while observing presentations and when chatting with individuals in the software community. I don’t know how widespread this advice is, but I do believe it represents one school of thought, and it is tragic beyond words because it is complete and utter nonsense. Anyone following this advice is in serious jeopardy.
It is silly not to look for patents that you might infringe out of a fear of potentially being a willful infringer. That is just bad legal advice. Willful infringement is exceptionally difficult to prove, and in fact is rarely shown during patent litigation. Since there is no “ignorance defense” to patent infringement, by not looking to see whether you are or will infringe is naive to the extreme, and will significantly compromise your entire project, perhaps your entire company. The worst part about it is by the time you know what you have done it may be too late to do anything about it.
The reality of the situation is that far more damage can come from not looking, because even if you don’t look and don’t know you can still infringe. This is critical to understand, and the reason it is not understood by many in the software community is because they make the enormous mistake of believing that patent law and copyright law are roughly equivalent. They think that copyrights are adequate to protect the intellectual property assets associated with software, which is simply not true. Copyrights are extremely limited in scope, there needs to be true copying, meaning if you do not have access to the original and/or you did not copy the original you cannot have engaged in an act of copyright infringement. On the other hand, patent law is very different than copyright law. There is no fair use in patent law, and you do not need to copy to be an infringer. Copyright law allows multiple individuals to own the same rights as long as they independently created. Patent law provides no such independent creation defense, so the sole question is whether you are doing what someone else has patented. It simply does not matter whether you came up with it on your own.
If the only worry were copyright law it would make all the sense in the world not to look because if you don’t do a search you cannot have access, and if you do not have access to the underlying work you cannot infringe the copyrights, if any. With patents because the law imposes what is best thought of as strict liability (i.e., do it and you are liable, no questions asked) you absolutely must know what lies out there otherwise you are just going recklessly going into the unknown and hoping that you (a) won’t do anything to infringe one or more patents; or (b) you won’t get caught if you do infringe one or more patents. A hope and a prayer together with extreme ignorance is not a business plan; it is stupid!
So what does this mean for open source? Well, it means if you are on the side of software being free and a bit of anarchist then it is only a matter of time before you infringe something. You will then complain and moan that the patent system is evil and needs to be demolished all because you didn’t do the responsible thing, the prudent business move of investigating the competition and the market. That is a YOU problem, not a patent problem.
Stepping back for a moment and looking at the “don’t look” advice from a different perspective, for those who want to do original work, I really don’t know how you can do anything original without knowing what else is out there. If the goal is an artistic or creative one, as is the case with academia for example, the only way to know where to try and make a mark is to endeavor to know the industry and figure out what others have done, and then seek to identify what hasn’t been done. This is one enormously positive aspect of the patent system. While clearly imperfect, when people and companies want to innovate and want to build a business and attract investors from zero to start-up they seek out the spaces where there are opportunities.
Looking for open spaces to innovate is what makes technology march forward, perhaps more so than anything else. What drives innovation is the business realities forcing inventors to look for the open space and then obtain a competitive advantage. Then the next person who comes along has to do the same thing, and so on and so on. Eventually only minuscule incremental advances will be possible, which typically leads to paradigm shifting innovation, which causes the hut for open space to reset. The process, and march, is never ending.
Over the years I have taken great flak for saying that those who embrace open source simply want to copy and they are not likely to innovate ever. Admittedly, the statement is a bit over the top, but not by much. It could better be said like this — those who believe software should be free and do not search for open spaces to innovate, but rather simply want to do whatever they want without regard to the rights of others are NOT inventors. They do not innovate, and they never will. They are blissfully ignorant, turning a blind eye to the world all in the name of expediency. They are not interested in originality or artistic endeavors, because there is no glory in being second to do something. No one remembers who comes in second, unless perhaps you are famously inept like the Buffalo Bills losing 4 straight Super Bowls.
My beef with the open source community is not with the entire community. It is with those who thwart innovation in the name of some anarchistic vision that enables them to be content with never attempting to be original. Perhaps I haven’t really understood my core hostility and just now. But copying does not advance technology and does not foster innovation. Copying is antithetical to the patent system and that is what is wrong with so much of the open source community.
The patent system is set up to want massive advances and encourage those by offering exclusivity periods. I have a real philosophical problem with those who want to copy, whether it be intentionally or without knowing. We ought to want to find the open spaces and fill them. That is what Thomas Edison did, and many thousands of others throughout our history. If more seeking of the open spaces were going on we could have whole new industries, job growth and an improved economy in the United States.
I have wondered out loud why we don’t have more of a bounce coming off this Great Recession. Certainly the historical dysfunctionality of the Patent Office prior to Director Kappos has something to do with that. It seems to me that open source has also lead many otherwise capable individuals to turn away from innovating. They are not looking for paradigm shifting open spaces and instead toward copying, or simply being blissfully ignorant about whether they are advancing or simply reinventing what others have already invented. The march forward has ceased in part due to the Patent Office backlog and due to an infatuation with open source and reinventing the wheel.
Lets face it, open source folks are very talented by and large. They write programs that are better than most proprietary programs, but even after many years there is little market penetration. We also see large companies, like Sun, embrace open source and then have revenues plunge by 80%. So obviously something needs to be done differently, and soon!
As you might expect, I have a solution to offer, and will do so in the days ahead.