Questions and answers on software patents
What is a software patent?
A patent is a set of exclusionary rights granted by a government to a patent holder for a limited period of time, usually 20 years from the earliest effective filing date of the patent application. These monopoly rights are granted to patent applicants in exchange for their disclosure of the invention claimed by the patent. Once a patent is granted in a given country, the patent holder may exclude someone from making, using, selling or importing embodiments of the claimed invention in that country. Software patents are different from copyright or trademarks despite being lumped together with them under the collective term Intellectual Property.
Who is responsible for taking care of any legal issues in Fedora?
The Fedora Project is not a separate and distinct legal entity. Red Hat, the primary sponsor of the Fedora Project, is actively involved in legal matters relating to Fedora, along with other Fedora participants. For example, Red Hat lawyers assist Fedora Project contributors in issues pertaining to free and open source software licensing, trademarks and patents. Refer to the Legal page for more information.
Software patents cover all sorts of things. Why worry about only some of them?
While the threat of software patents is a global problem, the risk is not uniform across the entire set of issued patents. Many software patents are of dubious enforceability because they are too vague or claim inventions that are already disclosed by prior art. The Fedora Project cannot solve the threat of patent issues entirely, in part due to the presence of submarine patents. However, when made aware of a real patent problem, the Fedora Project strives to reduce the risk posed by such patents, such as by changing code to work around patent claims, or by removing code that patent holders might argue is infringing or challenging the patent claims by showing prior art.
If software patents are not recognized in all regions, why can't you distribute Fedora with such software in other regions?
Contrary to common belief, software patents are granted in some form or other in most countries, including most of the countries in which most Fedora participants reside.
Can't you pay the patent license fees for patent encumbered codecs?
A codec is a set of methods to encode and decode video or audio information into a data stream. In the case of codecs like MP3 or WMV, the company or companies associated with developing the format are also involved in asserting (or restrictively licensing) patents that purportedly cover the format; we refer to such codecs as "patent encumbered". Other codecs, such as WebM, Ogg Theora or Ogg Vorbis, Dirac, and FLAC, are made available by their developers without asserting patents on their implementations; we refer to such codecs as "patent unencumbered". Fedora includes comprehensive support for open, patent-unencumbered codecs but is unable to include support for the patent encumbered ones.
Patent licenses usually require the licensee to pay royalties based on the number of users. Since Fedora is free and open source software, the effective number of users is essentially unrestricted. Patent holders are generally unwilling to give a blanket patent license for unlimited use; moreover, the royalty payments would be too high for it to be practical for the Fedora Project, or its sponsors, to pay them. Proprietary operating systems like Microsoft Windows include the costs of third-party patent licenses paid by Microsoft in the pricing of the product as sold to end users. Fedora is not sold commercially, so there is no way to recoup these substantial expenses.
Even if funds were available to do so, such royalty-bearing patent licenses would have to be compatible with the free/open source software licenses governing the software covered by the patent license. In practice this is usually challenging. For example, the most widely-used FOSS licenses (GPL and LGPL) place constraints on the ability of distributors to distribute software under benefit of third-party patent licenses. Even if the software in question is placed under some other license, distributing such software under benefit of a patent license may make the software effectively non-free and thus incompatible with Fedora legal policies.
Note that Fluendo offers a MP3 plugin for the Gstreamer multimedia framework (used by Totem, Rhythmbox and other multimedia applications) for free and other codecs and DVD player for a price that includes patent licenses. Fedora does not include or endorse these options but you can choose to use them with Fedora if you want to.
There are free and open software implementations of the codecs. Why don't you include them?
When we speak of an implementation being FOSS, usually we are thinking only in terms of copyright licensing. An independent FOSS implementation of a patent-encumbered codec, however, is subject to at least as much patent risk as, say, some proprietary reference implementation of the same codec. Note that while copyright covers only a particular implementation of software, patents are broader because they are more abstract, covering ideas that might be implemented in software in any number of ways.
How is it that some other Linux distributions include such software?
There are different reasons:
- Some of them include proprietary software, in some cases charging users for their product, where the charge incorporates the cost of licensing third-party patents. Fedora is not a commercial product and has a policy of not distributing proprietary software.
- They are willing to deal with the risk somehow. In some cases, it is because they are not backed by a large and profitable company like Red Hat. Red Hat, the legal entity and primary sponsor of the Fedora Project determines its own risks which can be different from other organizations.
What is bad about patented formats?
Even if you are willing to pay for patent licenses, there are many things to consider.
- No guarantee that your consumers actually will be able to read the data you're trying to produce. If you've reached this page, you've already experienced this - by producing media in a patented format, you automatically limit your audience to whatever platforms the patent holder has licensed their software to.
- No guarantee of being able to access your data forever. If you're using some software to view a patented media format, what happens if that software vendor goes out of business, or refuses to port their software to newer systems? You no longer have access to your data.
Note that this isn't even restricted to patented media formats - the same applies to popular proprietary formats used for word processing, spreadsheets, presentations, etc.
Can't you convert a patent encumbered codec to a open codec?
Fedora cannot include the decoders necessary to do this since those are patent encumbered as well. Although users might be able to do this, converting from one format to another typically results in a visible loss of quality. The only long term viable method is to encourage the creation of content in open formats and Fedora and Red Hat actively encourage and participate in such activities.
How Fedora works against software patents
- Fedora sponsors development of free, not patented encumbered open formats
In support of free culture and the open web, and to reduce the hold of proprietary and patent encumbered codecs, Red Hat has been sponsoring improvements on the open Ogg Theora video codec. For example Red Hat has funded work on the newest implementation, codenamed Thusnelda, via Christopher Montgomery (xiphmont), who created the format. That work has resulted in dramatic improvements to the codec.
- Fedora uses free, non-patented, open formats by default that anyone can implement, use, and view without having to obtain patent licenses.
Instead of MP3, use Ogg Vorbis. Instead of Windows Media, use WebM or Ogg Theora. Instead of Microsoft Office Open XML, use Open Document format documents, or even PDF. Vote with your currency by purchasing hardware and solutions that support these free and open formats.
The problem with proprietary and patent encumbered media formats
Imagine sitting down to your email. Your sister has sent you some pictures of your niece. However, when you go to look at them, all you see is:
|I'm sorry, you need Frobozz Viewer 3.0 to view this file. It's only $19.99, please have your credit card ready.|
Later, you go to view your mail on a public computer at the local library. And you get the same dialog box on their computer.
That is the reality for any sound, image, or document format that is encumbered by software patents that require licensing - any application that wishes to view, play, or create them requires paying the patent holders a fee. Normally, software and hardware vendors include this support, but they pass the costs directly onto the consumers in the cost of their software or hardware. For every copy of Microsoft Windows that you buy, or every DVD player that is sold, a portion of that cost goes directly to pay patent licenses; in fact, for DVD players, it can be over a quarter of the final cost . And, since that patent license applies to every copy in use, it's one of the reasons why you are not allowed to freely copy and redistribute software such as Microsoft Windows (although, to be sure, even if software patents did not exist, Microsoft would be unlikely to make Windows free software).
Fedora, however, has a public promise to always be freely redistributable by anyone. That is why Fedora cannot include support for patented media formats - it would break this redistribution promise. This means that, out of the box, you can't directly play media files such as Windows Media, MPEG-4 video, or MP3 audio. Fedora supports open media formats such as WebM or Ogg Vorbis and Theora , which are freely implementable and usable by anyone without a patent license.
Red Hat's position on Software Patents
Red Hat has consistently taken the position that software patents generally impede innovation in software development and that software patents are inconsistent with open source/free software. Red Hat holds a number of software patents for defensive purposes and has a patent policy under which it agrees to refrain from enforcing its patents against any party for exercising rights under certain free and open source software licenses, including GPLv2, GPLv3, LGPLv2.1, and LGPLv3.
Red Hat explained why software patents are problematic to the European Patent Office
Red Hat filed a friend of court briefing to the U.S Federal Court asking it to limit software patents
The court's ruling has been applied by lower courts and the US Patent and Trademark Office to invalidate some software patents.
Red Hat again filed a friend of court briefing to the US Supreme Court as a followup on the same case
Red Hat also filed a response to U.S patent and trademark office
December 2010, Red Hat filed brief with U.S. Supreme Court opposing expansion of standard for inducing patent infringement