IBM’s non-agression patent pledge: what are you gaining? What are you giving up?

IBM recently made a pledge to what they call “open source software” developers. If you’re new to this concept (or if you think you understand what the term “open source” means), I strongly encourage you to read about the differences between the open source and free software movements. Fellow blogger featherston has commented on the IBM patent pledge as well.

What’s the catch?

Read the final paragraph of the patent pledge and consider how many rights you have to agree to not prosecute over before you take IBM up on their promise.

Warning: knowingly infringing upon a patent carries a higher penalty than unknowingly infringing upon a patent. You might not want to read the original document (which lists the 500 patents covered in IBM’s pledge) but instead read only the revocation clause on the last page of the pledge. I’ve quoted the last paragraph of the pledge below for just this reason. All spelling and punctuation is in context. Emphasis is mine.

“IBM’s Legally Binding Commitment Not To Assert the 500 Named Patents Against OSS The pledge will benefit any Open Source Software. Open Source Software is any computer software program whose source code is published and available for inspection and use by anyone, and is made available under a license agreement that permits recipients to copy, modify and distribute the program’s source code without payment of fees or royalties. All licenses certified by and listed on their website as of 01/11/2005 are Open Source Software licenses for the purpose of this pledge.. Subject to the exception provided below, and with the intent that developers, users and distributors of Open Source Software rely on our promise, IBM hereby commits not to assert any of the 500 U.S. patents listed above, as well as all counterparts of these patents issued in other countries against the development, use or distribution of Open Source Software. In order to foster innovation and avoid the possibility that a party will take advantage of this pledge and then assert patents or other intellectual property rights of its own against Open Source Software, thereby limiting the freedom of IBM or any other Open Source Software developer to create innovative software programs, or the freedom of others to distribute and use Open Source Software, the commitment not to assert any of these 500 U.S. patents and all counterparts of these patents issued in other countries is irrevocable except that IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software

Typically, you want to keep the power to assert your rights under law. This is not something you should trade away without serious consideration. Asserting your “intellectual property” rights is no different.

To remain in IBM’s good graces, you would have to give up asserting your rights against another “open source software” developer. Perhaps some other “open source software” developer is distributing copies of your blog in a way that you haven’t licensed them to do. Maybe someone is building on a photo you’ve taken or an essay you’ve written but they’re doing so without your permission. In other words, perhaps an “open source software” developer is doing something to you that is illegal, should be litigated, and has nothing to do with computer software.

It’s quite easy to gain a copyright (commonly viewed as one of the so-called “intellectual property” rights) on something. All you have to do in most countries is write something in a fixed form (saving your document on your computer’s hard drive, writing a letter on paper, writing your digital photo to a storage medium, etc.). Since the ratification of the Berne Treaty, copyright assignment is automatic, even if you haven’t placed a copyright notice on the work. It’s quite easy for others to infringe upon your copyright. By default, copyright says “no”: no copying, no distribution, no preparation of a derivative work, no public performance. Your license is what grants others these things (and perhaps you are granting permission conditionally).

Are you willing to let “open source software” developers infringe in exchange for not opening yourself up to an IBM patent infringement lawsuit concerning any of the 500 patents in IBM’s non-aggression pledge?

What about the threat from IBM’s many other patents? IBM has tens of thousands of patents (I’d estimate over 90,000 patents)—they hold more patents than any other patent holder. In 2004 IBM gained over 3,200 patents. IBM says they have no plans to change their patent acquisition policy. 500 of IBM’s patents are listed in IBM’s non-aggression pledge. Are you ready to give up enforcing all of your “intellectual property” rights against “open source software” developers in exchange for access to less than 1% of IBM’s patents? Are you aware that you could lose a lawsuit over any of the other 89,500 or so patents?

What do patents have to do with me? I just run the programs.

You say you only run computer programs, you don’t develop them? That doesn’t matter. In the US, patents are 20-year government-granted monopolies. All patents cover ideas. Software patents cover ideas used in the production of computer software. It doesn’t matter that you only play MP3s, you probably owe Fraunhofer (or Thomson, Fraunhofer’s patent licensing partner) a fee. Perhaps you paid the fee when you bought the software that plays the MP3s, perhaps the fee was paid for you, perhaps nobody paid the fee. If Fraunhofer/Thomson says you haven’t paid, it’s your job to show otherwise. Not too long ago, Paul Heckel held patents which he claimed were implemented in Apple’s Hypercard. Apple didn’t negotiate a license for Heckel’s patents until Heckel threatened Apple’s users. Apple knew that Heckel could get money from the users (or at the least put them through a legal wringer) and Apple didn’t want to be known as the company that introduces its users to losing patent lawsuits, so Apple paid Heckel off.

Isn’t IBM’s pledge worth anything?

I don’t want to paint IBM’s promise as worthless, it is 500 more patents than you probably had access to before, but how valuable is it to the free software community? How much does it really change what free software users have to deal with? It’s not a patent license you negotiated for. It’s a revokable pledge to not sue under conditions where you give up your ability to enforce your rights—effectively the same as taking away those rights—for a certain audience for the duration of the patents’ lifetime.

Please don’t go into this blind; don’t forget to consider what you’re giving up.