AVM, Cybits tussle over SurfSitter, GPL

Several (German) news sites (see here, here and here) report on a dispute between AVM Computersysteme Vertiebs GmbH and Cybits AG. AVM, it seems, has been trying to stop Cybits modifying AVM's Linux-based Fritzbox firmware (a DSL terminal). If this Kat has understood the dispute correctly, it appears that Cybits’s SurfSitter DSL filter software downloads AVM-produced Fritzbox software on to a user's computer, modifies the software and afterwards re-installs it on the AVM-produced Fritzbox. SurfSitter is a child protection software program.

What makes this dispute so interesting is that part of the AVM-produced and Cybits-modified software falls under the General Public License (GPL). AVM reportedly bases its claim on copyright, trade mark law as well as unfair competition law and appears to argue, inter alia, that it holds the copyright for the overall product (Gesamtwerk), which in AVM’s own view does not fall within the scope of the GPL.

This dispute dates back to 2010, when AVM had initially obtained an interim injunction to stop distribution of Cybits' software. This case has now moved forward to full trial with Harald Welte having joined Cybits' camp in the proceedings as “intervener” (Streihelfer). Harald Welte is behind gpl-violations.org and is, according to Heise.de’s report, also supported by the Free Software Foundation Europe. Welte, who owns the copyright in part of the Linux Kernel, which is included in AVM’s as well as Cybits products, argues that AVM’s effort to prevent third parties like Cybits from distributing modified firmware violates the GPL which allows any third party to modify, recompile, re-install and run modified versions of the respective GPL licensed program (copyleft).

A hearing in this case has now taken place at the Landgericht Berlin on 21 June 2011. For more information on this case, from the view point of the Free Software Foundation Europe, click here. To read Harald Welte’s blogpost summarising with information on this case, click here. Meanwhile, if any of our readers has a link to website that explains AVM's view of the case, can he or she please let the Kat know, so that the links are not too one-sided.

UPDATE: please click here to read AVM's comment on this case (in English). As always, many thanks to readers for their comments. Once the court has handed down a decision, the Kats will of course let you know.

FaceBook face-off continues

This Kat watched the film The Social Network for the dramatic story of the creation of and ownership claims to FaceBook, the world's most famous social networking site. The film concluded with FaceBook CEO Mark Zuckerberg settling claims in 2008 with twins Cameron and Tyler Winklevoss and with Eduardo Saverin.

Although the film ended (and Academy Awards were collected), the legal wrangling continues. The Winklevoss twins now allege that the settlement which they reached in 2008 with FaceBook should be voided on the basis that it was procured by fraud. In the Federal Courts in San Francisco (California) and in Boston (Massachusetts), they particularly contended that FaceBook and Mr Zuckerberg did not provide an accurate valulation of the company shares before they agreed to settle their claims for US$65 million cash and stocks.

On 11 April 2011, the 9th US Circuit Court in San Francisco (at 4911) found the agreement between the Winklevosses and Facebook barred future lawsuits and was 'quite favorable' to the twins in relation to market activity at the time: The Facebook Inc v ConnectU Inc. The Court concluded (at 4912) with the prophetic words 'At some point, litigation must come to an end. That point has now been reached'.

Despite the forceful position of the lower court, the twins are fighting on. On Monday 13 June 2011, the US Court of Appeals in San Francisco agreed to suspend litigation related to the Winklevosses’ lawsuit until they file a petition with the US Supreme Court to reverse the dismissal of their claims by the 9th US Circuit Court in San Francisco. That means Facebook and Mr Zuckerberg cannot attempt to dismiss the separate lawsuit in the Boston court.

The IPKat thinks that enough is enough. The Winklevoss twins made their agreement in 2008 with the assistance of qualified advisers. They should not be able to avoid an agreement merely because they now want a bigger slice of the pie (or perhaps FaceBook's proposed public float in 2012).

With the parties again firmly entrenched in their positions, Merpel wonders whether someone should line up Aaron Sorkin for The Social Network 2. This one looks like it is set to go on for some time more ...

To cookie or not to cookie?

This Kat is often perturbed that the advertisements in her Gmail and FaceBook accounts seem to be personalised through no action by her. Indeed, recent advertisements on both sites have related to wine, law, cats, Sydney and/or army boot camp training (the last, of course, being a complete mystery). It with interest, then, that this Kat has been following the progress and (lack of) implementation of the EU 'Cookie Directive'.

For those unfamiliar with the concept of a 'cookie', it is a file which is stored on your computer by your web browser when you visit a website. A cookie can be used for remembering log in details, site preferences, shopping cart contents and anything else that can be accomplished through storing text data. Accordingly, cookies are a provide a wealth of useful information for targeted advertising.

The EU first enacted provisions relating to cookies in 2002 in the form of the ePrivacy Directive. In the UK, this was implemented by Regulation 6 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR):

Confidentiality of Communications
6. (1) Subject to paragraph (4), a person shall not use an electronic communications network to store information, or to gain access to information stored, in the terminal equipment of a subscriber or user unless the requirements of paragraph (2) are met.

(2) The requirements are that the subscriber or user of that terminal equipment -
(a) is provided with clear and comprehensive information about the purposes of the storage of, or access to, that information; and
(b) is given the opportunity to refuse the storage of or access to that information.

(3) Where an electronic communications network is used by the same person to store or access information in the terminal equipment of a subscriber or user on more than one occasion, it is sufficient for the purposes of this regulation that the requirements of paragraph (2) are met in respect of the initial use.

(4) Paragraph (1) shall not apply to the technical storage of, or access to, information—
(a) for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network; or
(b)where such storage or access is strictly necessary for the provision of an information society service requested by the subscriber or user.

That is, websites had to tell users how they used cookies and how users could ‘opt out’ if they objected. Many websites did this by putting information about cookies in their privacy policies and giving people the possibility of ‘opting out’.

On 25 December 2009 an amended Directive came into force which had to be implemented into the national law of Member States by 25 May 2011. Accordingly, Regulation 6 of the Privacy and Electronic Communications (EC Directives) (Amendment) Regulations 2011 reads like this:

Confidentiality of Communications
6 (1) Subject to paragraph (4), a person shall not store or gain access to information stored, in the terminal equipment of a subscriber or user unless the requirements of paragraph (2) are met.

(2) The requirements are that the subscriber or user of that terminal equipment--
(a) is provided with clear and comprehensive information about the purposes of the storage of, or access to, that information; and
(b) has given his or her consent.

(3) Where an electronic communications network is used by the same person to store or access information in the terminal equipment of a subscriber or user on more than one occasion, it is sufficient forthe purposes of this regulation that the requirements of paragraph (2) are met in respect of the initial use.

(3A) For the purposes of paragraph (2), consent may be signified by a subscriber who amends or sets controls on the internet browser which the subscriber uses or by using another application or programme to signify consent.

(4) Paragraph (1) shall not apply to the technical storage of, or access to, information--
(a) for the sole purpose of carrying out the transmission of a communication over an electronic communications network; or
(b) where such storage or access is strictly necessary for the provision of an information society service requested by the subscriber or user.

Therefore, a website operator required informed consent from the user before activating cookies. This amendment came into force on 26 May 2011.

Now 26 May 2011 was last Thursday. So why are UK websites not asking this Kat for 'permission to cookie'?

The answer is that Ed Vaizey, Minister for Culture, Communications and Creative Industries, and the Information Commissioner's Office (ICO) have reached a prior agreement concerning enforcement of the amended Regulations.

The ICO, as enforcer of UK data privacy legislation, was of the view that the new regulation needed to be interpreted strictly and immediately. Indeed, on the front page of its own website, the ICO states:

'On 26 May 2011, the rules about cookies on websites changed. This site uses cookies. One of the cookies we use is essential for parts of the site to operate and has already been set. You may delete and block all cookies from this site, but parts of the site will not work. To find out more about cookies on this website and how to delete cookies, see our privacy notice'.

Users are then invited to tick a box to accept cookies from the site.

However, the government was not so enthusiastic. In particular, it was concerned about the possible detrimental effects on UK online retailers: the burdensome necessity of obtaining consent from users could make online shopping so cumbersome and intrusive that consumers would use US sites rather than UK sites.

On Wednesday, Mr Vaizey stated in a press release that ‘there will be no immediate changes to how UK websites operate as a result of new EU rules’. Rather, he stated that the government would work with website operators to ‘come up with workable technical solutions’. In a press release, the ICO stated that website operators have up to one year to ‘get their house in order’ and that ‘this does not let everyone off the hook’.

The IPKat agrees with Mr Vaizey’s earlier comment at the CBI forum on e-privacy and the digital economy that the new cookie provisions were ‘a good example of a well-meaning regulation that will be very difficult to make work in practice’.

Merpel wonders, if she chooses not to accept cookies from a particular site, whether she can somehow stop that same site continually asking her if she wants to accept cookies (because that site cannot set a cookie indicating her 'no cookie' preference)?

Amazon '1-click' patent: now Australia rules

This Kat, who enjoys the odd bit of online shopping, has been reading with interest the latest controversy over the Amazon ‘1-click’ ordering patent. Many readers will be aware that over the past decade there has been a long history of unsuccessful challenges to grants of the patent in the US, Canada and Europe. The most recent destination for battle has been Australia.

In September 1998, under the Patent Cooperation Treaty (PCT), Amazon filed a patent application for its ‘1-click’ ordering system (application no 94779/98) and claimed priority on the basis of earlier applications filed in the US in September 1997 and March 1998. After having undergone international preliminary examination under the PCT the application entered the national phase of processing in Australia in March 2000. The application passed examination and its acceptance was advertised in June 2003 (no 762175). Telstra Corporation Ltd (Telstra), one of Australia’s largest telecommunications and media companies, opposed the grant in September 2003 (filing its statement of grounds and particulars in December 2003). The proceedings would bumble on for almost eight years, with numerous requests (all granted) for extensions of time to serve evidence and for requests to adduce further evidence. Finally the matter came to a hearing in February 2011 and Hearing Officer Ed Knock gave his decision on 9 May 2011: Amazon.com, Inc [2011] APO 28.

Grounds of Opposition

Amazon’s patent application contained 141 claims. At the hearing, Telstra opposed the patent on two grounds: (a) the invention as claimed is not a patentable invention under subsection 18(1)(b) of the Patents Act (novelty and inventive step); and (b) the specification filed in respect of the complete application does not comply with subsections 40(2) and (3).

Specification

Under subsection 40(2) a complete specification must describe the invention fully, including the best method known to the applicant of performing it. Further, under subsection 40(3), the claim(s) must be clear and succinct and fairly based on the matter described in the specification.

Amazon’s specification was titled ‘Method and System for Placing a Purchase Order via a Communications Network’, and began by stating that ‘the present invention relates to a computer method and system for placing an order and, more particularly, to a method and system for ordering items over the Internet’. There are 141 claims, nine of which are independent (and have a matching consistory statement). The broadest claim is Claim 1 which reads:

‘1. A method for ordering an item using a client system, the method comprising:displaying information identifying the item and displaying an indication of a single action that is to be performed to order the identified item: andin response to the indicated single action being performed, sending to a server system a request to order the identified item.’

Telstra objected to the scope of the claims and meaning of the expression ‘single action’. It argued that the term ‘single action’ was unclear, that it included within its scope more than one action, and that it might require qualification by the word ‘only’.

Hearing Officer Knock framed his discussion of the word ‘action’ after consultation with the Macquarie Dictionary and with the wording of the specification. For him a key characteristic (at [50]) was that a ‘single action generally refers to a single event received by a client system that indicates to place the order’. This was so even though a single action may be preceded by multiple physical movements of the purchaser (eg moving a mouse so that a mouse pointer is over a button or a double click). In relation to a possible requirement for a qualification by the use of ‘only’, Hearing Officer Knock was satisfied (at [52]) that ‘a “single action” is, as a matter of logic, only a single action, and its redundant use may even introduce a lack of clarity into the claims’ (emphasis in original). Accordingly, the Hearing Officer found (at [59]) that the specification satisfies the requirements of subsections 40(2) and (3).

Novelty

The test for determining whether the invention lacks novelty is the ‘reverse infringement test’ as set out in Meyers Taylor Pty Ltd v Vicarr Industries Ltd (1977) 137 CLR 228 where Aickin J stated (at 235):

‘The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask whether the alleged anticipation would, if the patent were valid, constitute an infringement’.

Telstra relied on five instances of prior art to establish its ground of lack of novelty. These were:

(a) The Digicash ecash system;
(b) The Open Market Technical White Paper OM-TransactTM: Technical Overview;
(c) The Dr Dobbs Journal on-line article entitled ‘Implementing a Web-Shopping
Cart’;
(d) Telstra’s prior Australian patent application no 19173/97 (which concerned an
automated telephone connection system); and,
(e) A patent in the name of Hitachi.

The Hearing Officer considered each in turn (at [64] to [73]). He found (at [74]) that the claims 2, 3, 8 to 31, 33, 34 and 39 to 141 were novel, and that claims 1, 4 to 7, 32 and 35 to 38 were not novel in light of Australian Patent No 730431 (19173/97) in the name of Telstra.

Inventive Step

The effect of subsections 7(2) and (3) of the Act, in the case of applications filed before 1 April 2002, is that a claimed invention will lack an inventive step if it is obvious in the light of:

(a) common general knowledge; or,
(b) common general knowledge considered together with information in a single document or through doing a single act, provided that the document or act could reasonably be expected to have been ascertained, understood and regarded as relevant to work in the relevant art in the patent area by the person skilled in the art.

Hearing Officer Knock found (at [86] and [90]) that the common general knowledge included:

(a) the display of order or item information, or instructions or user inputs, for Internet ordering systems in the form of Web pages using HTML code, and the use of a web browser by the customer to access and interact with such displays; and,
(b) the use of the following means by a client system or device to select information or send instructions or requests to the server system, clicking a mouse button over a pre-defined area of displayed information, a sound generated by the user, use of a television remote control, depressing a key on a key pad, using a pointing device, and selection of a displayed indication.

On the basis of this evidence, claim 1 was found to lack an inventive step (at [92]). This was because there appeared to be nothing defined in the claim which was not merely common general knowledge, except for the feature relating to the ‘single action’. However, when expressed in relation to the problem to be solved, the Hearing Officer considered (at [91]) that as ‘a matter of simple logic’, this was an obvious solution to the problem of reducing the number of actions involved in placing an online order (with the ideal scenario being just one action).

However, the inventiveness of the particular manner in which that single action functionality was achieved was a somewhat different story. For Hearing Officer Knock, it seemed (at [93]) that the use of cookies for that purpose may involve an inventive step. There was no evidence of such an approach in any of the prior art, nor evidence that the skilled person at the time would have regarded this as an obvious approach. In particular, he stated (at [96]) that the use of cookies in this invention was ‘both an elegant and inventive way of achieving one action ordering functionality’. Accordingly, claims 3 and 62 to 141, which all included cookies, were found to involve an inventive step.

Conclusion

The Hearing Officer found that claims 1, 4 to 7, 32 and 35 to 38 lacked novelty and that claims 1, 2 and 4 to 61 lacked an inventive step in the light of prior art. Therefore, Amazon's patent application included 141 claims, 60 of which were deemed invalid. To be successful, a patent application must not contain any invalid claims.

As the specification clearly contained patentable subject matter, Amazon was allowed 60 days to propose suitable amendments to overcome these findings. If suitable amendments are not proposed within that time, the Hearing Officer will refuse the application.

Dr Mark Summerfield of Patentology notes that the broadest surviving claim is claim 3 which, if rewritten in independent form, can be expressed as follows:

‘A method for ordering an item using a client system, the method comprising:displaying information identifying the item and displaying an indication of a single action that is to be performed to order the identified item: andin response to the indicated single action being performed, sending to a server system a request to order the identified item,wherein the server system uses an identifier sent along with the request to identify additional information needed to generate an order for the item, andwherein the identifier identifies the client system and the server system provides the identifier to the client system.

As far as this Kat are aware, this claim would be the broadest surviving claim of any of the ‘1-click’ patent family members.

The IPKat wonders how many more epic battles there can be over this one single patent.. Gven that it is now more than halfway through its 20 year duration, probably not many!

Merpel wonders whether Amazon could invent a way for her shop online but not have to pay for it …

Proprietary v open source software: more on removable features

Here's the third in a series of four short pieces by the IPKat's friend Keith Braithwaite (read the prologues to pieces one and two for the background) on the delicate balance between proprietary and open source models for the development and adoption of computer software.

More on Removable Features

Prologue

Last time we looked at the hidden downsides, for users, of spurning patented technology.
Now we return to the question of removing patented technology from existing products. This time we will look at a very low-level technology, buried deep inside the operating system, but which has a big impact on users’ experiences.

Despite its origins as a means of publishing scientific papers the web has become a rich visual medium. Almost every webpage has many graphical elements and graphics files tend to be large, particularly the high-resolution, rich colour images that we have become used to. Viewing this sort of content would be a much less satisfying experience without the application of two technologies from the proprietary world.

Zero-copy I/O

Many applications spend much of their time copying large chunks of data from one place in memory to another. For example, a web server delivering a page has to first retrieve the content from disk which involves copying it from a disk i/o buffer into the application’s memory space. The content is then copied into the buffer of a network socket to transmit it to the web browser. But doing that copies the content yet again to a network card buffer ready for serialisation on to the network itself.

An alternative is to copy the data into memory once and then pass around the system a “pointer” (or reference) to that data. The pointer is very small and requires much less effort to handle. Imagine the difference between sending a colleague a reference to a book in a note versus sending them the whole book. This is called (somewhat misleadingly) “Zero-Copy I/O”
The Apache 2 web server, for example, has a configuration option which means that when handling a request for a file requires no access to the data within a file – such as when delivering a file to a web browser as a download – Apache delivers the file contents without ever reading the file. But this is only possible if the operating system upon which Apache is running supports this feature.

The advantages can be significant. Sun Microsystems published a benchmark (showing measurements taken using ftp servers with a 1MB file) showing an improvement of 40% in the throughput and 20% less CPU utilization in servers that use Zero-Copy I/O. Removal of this functionality would make an impact on both users and operators of the server:

• The end user will perceive poor performance while using the resources of the server;
• The server owner will have to expend more to support the same number of users.

“Latency matters. Amazon found every 100ms of latency cost them 1% in sales. Google found an extra 0.5 seconds in search page generation time caused traffic to drop by 20% . A broker could lose $4 million in revenues per millisecond if his electronic trading platform is 5 milliseconds behind the competition.”

Data from IBM show how using a traditional approach instead of Zero-Copy I/O can almost triple the response time of an example application serving static files of various sizes . Such a slowdown could have a very serious impact on sales from a retail website – or drive away users to a faster competitor.

Even in your day-to-day work, you are probably benefiting from Zero-Copy I/O without being aware of it. Every time you request a large file – be it a photo, a software download, an audio track or a hospital x-ray – Zero-Copy I/O saves anything from seconds to minutes of your valuable time.

Zero-Copy I/O is becoming more widespread and the introduction of that technology into a range of products is being managed well. Let’s look at an older example of a key technology being mismanaged.

Image compression

Ever since the first NCSA Mosaic browser let webpages contain images, the Graphics Interchange Format (GIF) had been used as the standard encoding for simple pictures such as icons and page backgrounds. The authors of web servers and browsers thought little about this until 1994, when the owner of the intellectual property in the GIF standard, Compuserve, sought to collect royalties from companies incorporating that technology in their products. How could this have happened?

Computer manufacturer Sperry patented the Lempel-Ziv-Welch compression algorithm (LZW) in 1986. Unfortunately, LZW was published in a computer journal without reference to the fact that Sperry held a patent on it.

Not long after this Compuserve needed an efficient graphics representation for distributing images to their (pre-web) users and saw LZW as an ideal way to compress the graphics content of images. The resulting technology, GIF, was used widely by Compuserve users to share images. When the web arrived it seemed only natural to use GIF there, too. Sperry, merging with Burroughs to form Unisys, forgot that it owned the LZW patent until 1994. Unisys belatedly felt that it was obliged to assert its rights by demanding royalties from users of LZW – including the vendors of software that encoded or decoded GIF images, which included web server and browser makers.

Unisys quickly came to an agreement with Compuserve, letting it continue using LZW in the GIF format. Initially, both Compuserve and Unisys insisted that they only wanted to charge vendors of commercial software that employed the GIF algorithms. However, they soon had to retract this guideline because vendors started distributing the GIF support module as a “free add-on” to their commercial packages. Soon, only genuinely charitable organizations were able to avoid the payment of at least $0.10 per copy of any software that encoded GIFs.

Despite handing free licences to hundreds of non-profit organizations, schools, governments and so on, Unisys continued to generate only negative publicity. Anyone using a content management system or website authoring tool, or even an image editing application, was either deprived of the facility to use the web’s most popular image format and/or ran the risk of being found liable for infringing Unisys’s patent.

The worldwide patents on LZW expired in 2006. By then the GIF controversy had led directly to the formulation in 1995 of a new image encoding standard called Portable Network Graphics (PNG). However, PNG is still not fully established, largely due to the initial unwillingness of the leading browser vendors to invest in supporting it – even when it became an official standard of the WorldWide Web Consortium. Most webmasters continued to use GIFs, even though they were covered by patents, rather than lose readers.

Next article

My fourth and final article, which will wrap up the whole series with a summary, will look at the proposition that product designers don’t need to use proprietary technology because no real progress has been made in many areas for several decades. The conclusions may surprise you.

Removable Features of Operating Systems

The IPKat is no expert when it comes to the software industry but, like many IP enthusiasts, he tries to keep up with the major issues and thought-trends as and when they crop up. One of the issues he has pondered about from time to time is the sometimes hostile, sometimes constructive tensions that exist between the business models that drive proprietary software and open source, as well as the continuing dialogue between the supporters of each. Bearing this in mind, the Kat is pleased to be running, over the next few weeks and starting today, a series of four short pieces by his friend Keith Braithwaite, which he hopes will do two things. One is to seek to pinpoint the most significant issues as viewed from the industry side rather than from that of the academics and lawyers in whose company this Kat is most comfortable. The other is to place these issues within some sort of temporal continuum where that is possible. And here's the first of them:

Removable Features of Operating Systems

Prologue

It is long established that intellectual property law applies to computer software. Source code written by programmers is subject to copyright and, where programmers are employees, the copyright is almost always assigned to their employer. The processes and techniques embodied in that source code may be further protected by patents. Individual programmers or, as is more common these days, teams of programmers invent technical solutions to problems, and those solutions may be protected by patents. Again, a patent will usually be assigned to the employer, if any, of the inventor, but sometimes to some other organization.

The fact that this is possible is a source of controversy. The Free and Open Source Software community embraces strong copyright protection of programs—that is how Open Source (OS) licences gain their legitimacy and strength—but they have set their faces against patent protection.

The field is complex and fraught. In some cases it is not clear even from the statements of any given patent office whether it even grants software patents or recognises the possibility of patenting an invention realised as software. Various precedents have been set for the patent-eligibility of software, and various policies expounded, which differ between jurisdictions.

Notwithstanding all this confusion, substantial portfolios of software patents exist. All major (and a great many minor) software vendors have a lengthy list of patents and often agree to cross-license items from each other’s portfolios. Other vendors and even their customers can find themselves in court for infringing patents.

The question of whether software patents are possible, valid or desirable is often discussed in lofty, abstract terms. However, the actions that arise through IP infringement and attempts to avoid it in software development can have very concrete outcomes for the users of software systems. This series of four posts explores some aspects of that impact.

First, we examine the impact of removing a feature from software. In many cases where patent infringement is claimed this is the “obvious” course of action for the infringer but as we shall see, it is not necessarily the best option from the user’s point of view.

What is a removable feature?

The operating systems of computers and intelligent devices (eg mobile phones, set-top boxes, satellite navigation systems and even dishwashers) are complex pieces of software. Yet the end user is often hardly aware that they exist—until something goes wrong.

Functions of the operating system include the management of system resources, such as memory, and storage, providing graphical displays, handling input devices and networks and any other generic features of the system, which may be used by every application and not specifically for any particular one.

Because of their inherent complexity, modern operating systems are highly modular. Particular modules can be included or excluded as required (for example, support for a particular model of printer or DVD drive).

Vendors facing patent infringement claims sometimes react by removing the offending feature or replacing it with a near equivalent that is unencumbered by IPR. In the case of OS software, in theory any user of the software can remove a patented feature and recompile the software. In practice there are considerable obstacles to doing that.

The operation of removing a patented feature requires considerable expertise, comprehensive and accurate documentation, potentially a lot of time and the appropriate software tools. Even if that can be arranged it may be that, without the patented feature, the software is next to useless.

Software users do not escape liability to pay damages for past infringements simply because they no longer use the infringing technology and, if any other patents cover its remaining features, the act of recompiling the code without the original feature may cause further infringement.

Intellectual property and removable features

So, removing features doesn’t necessarily avoid liability. It can also be disastrous for the user. Imagine you've bought a new flat-screen TV with a memory-card slot. Eager to display your digital photos as an instant slide show, you insert a card from your camera. But instead of a slide show, all you see is an error message! Your TV helpfully offers to repair your card. That doesn’t help, so you move the card to your PC to see what might be the problem. You discover that all your carefully applied captions have been replaced with meaningless filenames. What has happened?

This can easily happen if your memory card happens to use a FAT file system which dates back to pre-Windows MS-DOS days, to organise its storage, but the manufacturer of your TV has chosen not to take a license to the patented “long filenames” feature for FAT. In February 2009 it emerged that the Linux kernel (which, in this example, we imagine is the operating system on your TV) infringed a number of Microsoft patents. One of these concerned the way in which FAT can be used to support long filenames while maintaining the short filenames for older version of the operating system.

Satellite navigation seller TomTom agreed to remove exactly this infringing technology from its devices. This implied a change to the Linux kernel to avoid infringement. The Linux community, ever keen to demonstrate the ability of OS projects to “code around” problems like this, set to work to replace the offending module. The new module is designed to support short (“8.3”) filenames or long, but not both at the same time. Setting aside the question of whether this change in fact addresses the patent infringement, this change potentially renders the resulting file system incompatible with older software that recognises only short names or newer software written to use the patented functionality. So the new, non-infringing system does not have exactly the same functionality as the infringing version.

There are many other examples of technology that could turn out to have IP issues at any time, if their developers have not been careful, conscientious or fortunate enough not to have got caught. Because they relate not to “what” a system does, but to “how” it does it, they can be invisible to users. Let’s take a couple of examples and see what impact any potential IP issues with them might have.

Hibernation

When you shut down your PC or laptop, Windows lets you choose between a complete shutdown, hibernation or sleep. From the user’s point of view, the main difference between them is the speed with which the machine will start up again.

Linux distributors are in no doubt about the value of the hibernation feature to users. Some have begun to support at least the equivalent of hibernation―but getting that to work reliably is probably still beyond the capability of the average user. Even when it works, users may find that their wireless network is inactive after resuming after suspension. This lack of reliability is thought to be at least partly due to device drivers developed without the support of the relevant hardware manufacturers. This is a problem that has been solved very well by the proprietary operating systems, but those solutions have been rejected by the Linux developers.

Power management

Because of the importance of extending battery life, notebook and laptop computers have been designed for many years with power-saving hardware features. The processor can be slowed when it doesn’t have a lot to do, while unused parts of the system can be turned off. A standard (the Advanced Configuration and Power Interface specification–ACPI) was released in 1996 to provide operating systems with full control over the hardware to do this.

Linux distributions have been slow to take advantage of hardware power management features, in particular ACPI. This may be connected with the fact that the specification is complex and not easy to implement. Yet it is clear that there is a great need for it. According to some calculations, Linux-related carbon emissions currently total around five million tons annually–0.1% of the estimated amount of carbon added to the atmosphere each year by human activities.

In response to this need, the number of Linux-based “green” initiatives is growing rapidly. But optimistic press announcements cannot disguise the fact that there is still a long way to go in improving the integration between hardware, software and network management. For example, a Network World investigation in mid-2008 revealed that neither Red Hat nor SUSE distributions were able to exploit the ACPI features of the servers tested.

When it comes to saving the planet, should the potential cost of IP licences be allowed to stand in the way of progress?