LinuxCon: Open Source Patent Crisis Is Not Going Away

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BOSTON — Eben Moglen, director-counsel and chairman at the Software Freedom Law Center (SFLC), has long stood at the forefront of the free software revolution. At LinuxCon this week, Moglen delivered a keynote address in which he lauded the movement’s many successes, ending with the capacity crowd giving him a standing ovation.

“At the beginning of this conspiracy of ours, we wanted to make it happen that freedom would go inside of everything, and then we could turn it on,” Moglen said. “We are making freedom useful to people.”

But Moglen, who helped to draft the GPL license used by many open source projects including the Linux kernel, also had plenty to say about challenges still facing free and open source software, and what more must be done to safeguard the effort’s many achievements — particularly in the face of a daunting patent landscape.

In Moglen’s view, free software is now a mainstay, helped by the solid legal licenses that enable it, especially the GPL. Those licenses have already seen their share of tests from which they’ve emerged unscathed. For instance, Moglen’s organization, the SFLC, has successfully settled multiple legal actions based on GPL compliance issues to date.

“We will not — between now and 2020 — find ourselves in a copyright crisis,” Moglen said.

Patents, however, remain another matter.

“The patent crisis not going to go away,” Moglen said. “We’re now in a situation where clarity on the patent situation is not coming anytime soon.”

As a result, Moglen noted that efforts like the Open Invention Network, which pools patents together for open source defense, have become critical efforts for the free and open source movement.

“It’s very difficult to make common patent arrangements,” Moglen said. “The patent system is built for secrecy and for trouble-making — it’s not a pro-innovation system.”

Software Freedom Vs. Profit

While software freedom has been proven successful — with millions of devices now powered by free and open source software — not every piece of software includes the same levels of freedom, as Moglen sees it.

Still, for Moglen, that’s not necessarily always a reason for concern: Instead, he described the possibility of a coexistence between the needs of business and software freedom.

“When we are defending freedom, we are not defending it against business,” Moglen said. “But sometimes, it is against greed.”

Moglen suggested that it’s important to continue to try and develop ways for making it easier for businesses to be part of software freedom. To that end, he suggested that free and open source advocates need to continue carefully navigating though the shoals of the patent system.

He also noted that the ideals of software freedom require new ideas to help continue their spread.

“We need to make sure we are generating interesting, powerful new ideas that freedom will make good business,” Moglen said.

Sean Michael Kerner is a senior editor at InternetNews.com, the news service of Internet.com, the network for technology professionals.