Hacking away at patents
Felix Stalder

Mute Magazine #20, July & August, 2001
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Everyone loves open source (OS) these days, with the predictable exception of Microsoft which is most directly threatened by it. Some, like Pekka Himanen in his optimistic book Hacker Ethic, go as far as arguing that the OS community is not only developing new software for the Internet but also nothing short of a new ethical foundation for the network society at large. Similar to the way in which 17th century protestant ethic work, rationality and self-restraint laid many of the cultural foundations for 19th century secular capitalism, the culture of self-motivation, openness, and collaboration permeating the OS movement is seen as the core of an emerging new ethic. Recently, big business has begun to join this praise of OS, though for somewhat more pragmatic reasons.

Leading the pack of corporations that have discovered OS and the Linux operating system is IBM. This has less to do with a new ethic than with hard-nosed business strategy. More than a decade ago, IBM ignored the emergent client-server paradigm, saw Sun and Microsoft prosper and almost went bankrupt. It then reinvented itself as hardware and service company focussing on "solutions". A free operating system that can be customized for its own hardware and given away with extensive service contracts fits in this strategy perfectly. Consequently, IBM is pouring more than U$1 billion into various open source initiatives. While this is a lot of money, one can assume that it is much less that IBM currently pays in licensing fees for proprietary software.

More surprising than IBM's sudden embrace of the OS community is the enthusiasm with which this is being welcomed by many OS activists. Not too long ago IBM was the proto-typical sterile corporation that inspired the killing-you-for-your-own-good computer HAL in Stanley Kubric's 2001: A Space Odyssey and Apple's famous 1984 Big Brother commercial. Also not too long ago the OS movement was distinctly countercultural. An odd couple, it seems. The main reason for this enthusiasm is the fact the IBM's support of OS finally proves that Linux is really serious. IBM gives the OS movement the recognition that many within it had been craving. In the peculiar culture of the US, being serious means, above all, being useful for business. What was noted as particularly beneficial was the fact that IBM's involvement made Linux a safe choice for conservative managers, or as one slashdoter put it: "No one has ever been fired for buying IBM, Intel, or Microsoft." Thanks to IBM, middle managers can now add Linux to this safe-play category.

How long this unlikely honeymoon will last, and if it's ultimately beneficial to the OS movement remains to be seen. Underneath the balmy surface there are conflicts lurking between the suits and the hackers and none more important than the issue of software patents. A patent grants an inventor for a limited time exclusive right to exploit an invention. Contrary to proprietary software, which prevents knowledge from the public domain by hiding the source code, a patent makes an invention public but restricts the rights to use this invention to the patent holder. Particularly contentious are the software and business-model patents because they often cover general ideas and broad ways of doing things that are not necessarily always new.

Like in an arm's race, many companies acquire such general patents as a defensive weapons. The more patent a company controls, the better its bargaining position in cross-licensing deals with other companies that also hold patents. While such a mutual disarmament practice works reasonably well in a corporate world crawling with lawyers, it's a direct threat to the development of OS movement which has traditionally rejected patent protection for software in favor of a more collaborative, non-proprietary approach to innovation. This is therefore especially vulnerable to having its development efforts crippled by the threat of costly patent infringement suits. This is a very real problem. Some key technologies can't be used without expensive licenses. Open source browsers, for instance, can't display GIF images because the algorithm used for the format is patented by a company called Unisys which is increasingly trying to impose licensing fees.

All of the big technology companies which are currently supporting Linux are also engaged in the amassing of software patents. None more extensively than IBM which has secured by far the most U.S. patents: a grand total of 2,886 in the last year alone. Not all patents are bad, of course. Some, however, are very questionable. Last year, for example, IBM acquired a patent on the idea of using spare processing power of idling computers connected to the Internet for computationally intensive processes in the fashion of seti@home. This is hardly an innovation but clearly an attempt to cover all much territory as possible and to secure dominance over an entire field that has barely developed.

Such a strategy of protective land grabs is clearly at odds with the spirit of the open source movement. To what degree such patents are being enforced in the context of OS software remains to be seen. However, as it moves into mainstream business it is likely to be more and more affected by it. To address this problem in a constructive manner, Bruce Perens the author of the Open Source Definition and one of the most respected OS activists has been calling for a meeting, Open Source and the Law, with industry representatives later this year. His goal is to convince the corporations which are now making money off OS they should support the movement by relinquishing some of the patents that are most restrictive for future OS development. A long shot, to say the least.


  • Pekka Himanen: The Hacker Ethic, and the Spirit of the Information Age. Random House 2001
  • Bruce Perens: Software Patents vs. Free Software.

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