Patents breeding software extortion: Moglen

Organizations relying on the use of open source software should be aware that commercial vendors are prepared to threaten, and accept royalties, on the basis of perceived patent infringements, according to the Free Software Foundation's general council Eben Moglen.

During a keynote address at this year's Linux.conf.au in Canberra, Moglen spoke of the strength of the legal state of free software but warned about the rise of software patents.

"Our most important legal instrument, the GNU GPL, was thought to be unconstitutional," Moglen said. "Those drums have ceased to beat."

Moglen referred to the SCO versus IBM case by saying the company is not completely flat-lined, adding the legal consequences of the case is validation of the GPL.

"Copyright-law attacks on free software are not productive - they took their best shot at it and failed," he said.

A Professor of Law at Columbia University Law School, the mercurial Moglen expressed greater concern over the rise of software patents and the "significant dangers" they have produced which, he said, can be used for software extortion.

"Suing garage developers for patent infringement is not a useful technique, because garage developers can't pay royalties; but threatening customers is the primary technique for the anti-competitive use of software patents and there is more going on than would you believe," he said.

"Sudden avalanches of monopoly lawyers descending on unsuspecting customer executives to warn them about the patent trouble they are about to get into if they don't pay royalties for free software has been going on at an enhanced rate for 12 months.

"The victims of such 'muggings' don't like to come forward. They don't tell the press, or us."

Moglen said some organizations prefer to pay royalties to the monopoly rather than challenge the threats.

"Everyone who starts paying tribute to the monopoly for the use of your code encourages others to fall in line," he said, adding that he had travelled to Redmond and "threatened them on your behalf" and is confident such threats are being heard.

"Sometimes that means destroying patents," he said. "We destroyed the FAT32 patent and where necessary we will do more."

Moglen stressed it is not in his interest to lead a charge on muggers but said there are four cases in the US he would go to court for.

"Free is getting harder to say. We are the future of political freedom [and] we are in many ways there, [so] it's working," he said. "We can also save free hardware and will free the spectrum with free software."

Moglen said version two of the GPL is still standing and is expected to last into an old age but will be replaced without much disturbance from (SCO president and CEO Darl) McBride or Redmond.

"A positive result of the SCO case is that vendors and customers realized preventative medicine was good to practice," he said. "Defending freedom has taken a step forward."

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