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RFD: A Nobel Peace Prize for Disarming Software Patents

If Al Gore can win the Nobel Peace Prize for bringing the findings of the scientific community to the political forefront, perhaps Richard Stallman should be next in line for his early and tireless advocacy against Software Patents. And the sooner, the better.

Al Gore was not one of the scientists who observed, theorized, modeled, or predicted the catastrophic consequences of rising concentrations of atmospheric CO2. But he paid attention when scientists, including future Nobel Prize winners, formulated and published theories that predict dire consequences for the fate of the human species if all nations on earth do not radically change our economic and environmental behavior. Gore made a personal decision to accept these findings as truth, albeit a very inconvenient truth, and took it upon himself to share the message with all the political leaders, business leaders, educational leaders, and concerned citizens he could reach. It is a disturbing message for those who have gained the most through unsustainable practices (which is most of the people who have gained the most on an absolute basis), and it is a message that has been vigorously challenged by those whose paychecks depend on maintaining the status quo, no matter how unsustainable.

But the Nobel committee did not stop there. By awarding the Nobel Prize for Economics to Leonid Hurwicz, Eric Maskin and Roger Myerson for their work on Mechanism Design Theory, they endorsed the fundamental thinking behind another inconvenient truth. Namely, that software patents may be greater deterrents to innovation than they are incentives, as they summarize in this paper:

...when discoveries are "sequential" (so that each successive invention builds in an essential way on its predecessors) patent protection is not as useful for encouraging innovation as in a static setting. Indeed, society and even inventors themselves may be better off without such protection. Furthermore, an inventor's prospective profit may actually be enhanced by competition and imitation.

Which brings us now to a pressing question about today's legal climate: as the concentration of software patents continues to rise, to the point where these patents now threaten the single most important innovation model known in the software world today--open source software--is it time for us to pay attention and do something about putting caps on these hazardous discharges?

After years of indecision, Sun has finally made a strategic commitment to open source. From their CEO to their engineering ranks, Sun is not only releasing software under OSI-approved licenses, but they are starting to behave like an open source company as well. Bravo Sun! One particularly innovative bit of technology is Sun's ZFS file system. Except that as soon as people start paying attention to ZFS, NetApp decides to sue Sun. Jonathan Schwarz responded, calling them patent trolls. The case has not yet gone to trial and there is much we do not know. Did Sun or NetApp develop any innovative code related to the file systems in question? Was any of that code related to the patents that are being litigated? Are the patents being litigated are valid or enforceable? One thing is sure: when it comes to innovation the Linux community had been there and done that with the tux2 filesystem back in 2000, but fears over patent infringement led to abandonment of the that project in 2002.

What a shame!

The claims made by both companies make it impossible for me to judge which side is using patents more unfairly, but what is perfectly clear in 2007 is that a potentially more innovative file system, tux2, never saw commercial use because of the fundamental dangers of any use of software patents. In this way, Stallman got it exactly right when he likened software patents to land mines--they do harm long after they are put into place, and the harm they cause can be wholly independent of the intent or trustworthiness of the holder. In this context, NetApp and Sun are but two of the too many high-tech companies who have not sworn off the devastating and indiscriminate effects of software patents. They are not agressors against open source per se, but the consequences of their patent stance does us great environmental harm. By contrast, members of the Open Innovation Network have created a safe harbor of innovation, at least for Linux. My employer, Red Hat, has gone farther with a promise not to enforce patents against any GPL-licensed software implementation, as well as several other reciprocal licenses they cite. Open Source needs more companies who are more committed to the open innovation models now explained by Maskin's work. We need more companies willing to dig up and disarm their patent arsenal, unilaterally if need be.

So, if you know anybody on the Nobel Peace Prize committee, please send in your recommendations. The time for debate on the benefits or harm of software patents is winding down. The time has come to take action--promoting the open source model and dismantling a system of software patents that should never have existed. If we don't, we'll suffer climate change of a legal nature, with dire consequences for the subset of the human population who write, support, or use software.