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Andrew Katz's presentation of legal issues surrounding mobile technologies. Presented at Transfer Summit on 8th September 2011
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About me
• Former programmer• Have released code under GPL• Technology enthusiast
• My firm provides legal advice for:– Corporate, fundraisings etc. (F/OSS DD)– Employment (including GPL friendly
employment contracts)– Commercial property– IP/regulatory/licensing
Hot issues
• Patent madness• API protection• GPL enforcement
• App stores
“Patents seem to work pretty well in the mobile space.
There's plenty of innovation there, and the system runs
very smoothly.”Anonymous patent agent to me at a cocktail party, c. 2003
Patent Madness
• Patents don't work• Oligopoly supporting• Jurisdictional in nature
• Contributory infringement and source code.
Do patents work?
• Are they necessary for innovation?– No - many reasons e.g.:
http://endsoftpatents.org/resources-for-economists
– “software patents...are associated with lower R&D intensity” - Federal Reserve Board report, 2004
• Potential barrier to entry for small businesses
Oligopolistic
• Incumbents can afford expensive patent application/acquisition fees.
• Incumbents amass a defensive patent portfolio– Patents should only protect stuff which would NOT
have been invented otherwise.
– Defensive patent portfolios are aimed at stuff which is being invented anyway.
– Therefore the existence of defensive patenting proves that the system is broken.
Jurisdictional Only• Reports almost always omit the jurisdiction
where the patent exists.
• Usually US
• Historically, it's been easier to obtain software related and business method patents in the US than in the UK (and the rest of Europe)
• Some inventions may not be released in jurisdictions with the strongest patents
• Will the US change its tune if China becomes a net exporter of IP?
Contributory infringement
• Providing an essential element for the infringement of a patent
• Could this apply to source code?
• The patent itself could contain source code
API Protection
• Is copy or recreate still the binary option?
• JVM vs. Dalvik
• (Oracle vs. Google)
• In EU (inc UK) – Computer Programs Directive
• SAS -v- World Programming
GPL enforcement
• GPLViolations.org• Software Freedom Law Center• “Pay for an exception”
• Oracle
• Search and seizure
App Stores
• GNU go• Incompatibility with GPL• FSF says
– Apple is in violation of GPL – Upstream provider violates
http://www.fsf.org/news/2010-05-app-store-compliance
• Android terms of service ok: carve out GPL
