On October 17, 2003 11:56 am, Mike Hearn wrote:
In future please do not raise patents on this list. What we don't know, can't hurt us (as much).
IANAL, but I beg to differ.
First, Wine should be reasonably well protected against patent infringement, because (and I mean this in the nicest way possible) it doesn't actually *do* very much that could infringe. What I mean to say is that the API implementation is largely a compatibility shim between win32 applications and native APIs on the host platform. As was mentioned in the texture case, *wherever* the potentially infringing action takes place, it is almost certainly not in Wine itself - and moreover, if the user/host/customer/whatever has a legal right to that functionality and patented behaviour, then Wine shimming those calls on should be perfectly legal. Likewise, shimming those calls on to unlicensed implementations represents a violation of the user, in that he/she has enabled behaviour on their platform (that Wine duly abides by) that they have no legal entitlement to. Whatever, I think patent law (in the US particularly) is a giant pigopolist sham, but it shouldn't be Wine's business to feel the need for online lookups or other "out of band" (eg. configuration) assurances to check whether the host implementations, drivers, and what-not are legit.
Secondly, in any rare instance where Wine itself *might* infringe on patents, the best course of action is to force the worms out of the intestines. Erm, or should I say "woodwork"? Getting an appropriate metaphor for IP lawyers is a tricksie affair at the best of times. Patent holders, for better or worse, must enforce their IP for it to remain valid. Hidden and intentionally undiscussed issues in the Wine source can be justification for patent holders to lurk and not spring surprises until much later on, under the guise that they can not act on IP violations until they *know* about them. Look at the shambles with SCO<-->Linux - it seems that the one evidential string in SCO's bow after all the years of open/public development on linux is that Linus stated publically that he, almost in the same words as you, "prefers not to know". The recent Wired article has some references to this, FWIW.
IMHO, you're better to code, discuss, and even publicise such things. Hell, if you're not sure about the IP coverage on something you're doing viz-a-viz some dubious patent or other, consider mailing the party concerned with a CC to the public list (and perhaps a CC to FSF-legal too). The hardest problem of IP law to overcome is that the mere fear of patent infringement stifles development and competition, irrespective of whether the suspected infringement has any firm footing or not. I suspect that in many cases, patent holders fear the expense and bad press of enforcing their tenuous claims and would rather maintain an unchallenged advantage because others say and do nothing. IP law is the modern protection racket, and IP-hoarders know it. Moreover, the principle of "balance" in IP law is the ever-present risk of patents being invalidated should the matter be openly discussed and disruptive issues such as prior-art be introduced, but "preferring to not discuss it" robs you of this counterbalance. Bear in mind also that in the US, IIRC (and again, IANAL), the patent holder has one year from the time they are aware of potential infringement to when it becomes too late for them to pursue/enforce it. More or less, IANAL, IMHO, just my $0.02, and various other hand-waving caveats are assumed. Of course, clarifications of this from any qualified opinions are most welcome.
Cheers, Geoff