Image: BCFC, Getty Images/iStockphoto

Patent lawsuits against open source projects are reportedly on the rise. The question is why. Yes, open source has never been more pervasive or popular, but at least some of the patent suits don’t make much sense.

Take, for example, Rothschild Patent Imaging (RPI) LLC’s lawsuit against the GNOME Foundation. It’s unclear what substantial value Rothschild hopes to gain by the action. When Rothschild Connected Devices Innovations, LLC sued Garmin (eventually dropping the suit), it targeted a cash-rich corporation. Here RPI is going after an open source foundation–GNOME reported just over $1 million in income in 2018 (up from around $250,000 in 2017). According to the GNOME Foundation, RPI offered to settle for a “high five figure amount,” but the GNOME Foundation is fighting, not flinching.

The reason? Protecting open source.

SEE: How Mark Shuttleworth became the first African in space and launched a software revolution (cover story PDF) (TechRepublic)

Fleecing the fleece-less

As reported by sister site ZDNet, RPI sued the GNOME Foundation over alleged violation of its US patent (#9,936,086) that covers wireless communication of images. Less well known, however, is the fact that RPI sued eight organizations simultaneously using the same patent. Only one of those alleged violations involves open source.

RPI, in other words, doesn’t appear to have a particular axe to grind against open source. It’s not a SCO that sued IBM for $1 billion way back when, then hiked that number to $3 billion (and sprayed pay-or-be-sued letters across every known user of Linux). This is not to suggest that RPI’s actions won’t have an impact on open source. They could have a very negative impact on open source, generally, and Shotwell users, particularly, as GNOME Foundation executive director Neil McGovern told me.

“Our aim is to stop this from happening ever again. We want to send the message that you don’t mess with free and open source software.”

As the GNOME Foundation went on to say in a statement:

A month ago, GNOME was hit by a patent troll for developing the Shotwell image management application. It’s the first time a free software project has been targeted in this way, but we worry it won’t be the last. Rothschild Patent Imaging, LLC offered to let us settle for a high five figure amount, for which they would drop the case and give us a license to carry on developing Shotwell. This would have been simple to do so; it would have caused less work, cost less money, and provided the Foundation a lot less stress. But it also would be wrong. Agreeing to this would leave this patent live, and allow this to be used as a weapon against countless others. We will stand firm against this baseless attack, not just for GNOME and Shotwell, but for all free and open source software projects.

The answer as to how this might affect other users of Shotwell is two-fold. First, as mentioned in the statement, RPI has shown a willingness to sue. Perhaps its strategy is to collect a “high five-figure amount” from a large volume of defendants. Rather than go big (SCO style) with one or two defendants, it might be RPI’s strategy to collect a little from a lot of organizations on the assumption that keeping the settlement fee low enough might prompt defendants to skip the bother of protracted litigation and just pay.

The GNOME Foundation is pushing back. Not only could this squelch RPI’s efforts to fleece would-be licensors, but it also resolves a potentially more nettlesome aspect of RPI’s suit: Injunctive relief. Not only did RPI sue for damages, but it also sued to stop the GNOME Foundation and downstream users from exercising the rights offered under the GNU Lesser General Public License (LGPL).

SEE: GNOME sends message to ‘patent trolls’ and files defence against lawsuit (ZDNet)

Enjoining open source use

As attorney James Gatto of Sheppard, Mullin, Richter & Hampton LLP has written, Shotwell is licensed under the LGPL, version 2.1, which allows licensees to copy and redistribute the code to others. Par for the course in open source land, right?

Yes, but….

If somehow Rothschild obtains an injunction, will it apply just to the GNOME Foundation or downstream users as well? One of the novel underlying legal questions that would need to be addressed is whether licensees who redistribute an open source program are “in active concert or participation with Defendant.”

In this way, RPI could actually reach deep into the downstream user base of Shotwell or, at least, those who modify and redistribute it. If successful, RPI could block Shotwell users from using or modifying the software. This, in turn, would create serious uncertainty as to the essential freedoms afforded to open source users.

The GNOME Foundation is fighting the suit, filing a motion to dismiss the case outright. The GNOME Foundation is also answering the claim, arguing that there is no patent violation. Finally, the GNOME Foundation has filed a counterclaim, because “We want to make sure that this isn’t just dropped when Rothschild realizes we’re going to fight this.

“We want to send a message to all software patent trolls out there–we will fight your suit, we will win, and we will have your patent invalidated,” declared the GNOME Foundation in its statement.

RPI may have picked on the wrong GNOME.

Disclaimer: I work for AWS but in that work I have no interaction (direct or indirect) with the GNOME Foundation. At the time of writing, I am not aware that AWS has any involvement with the GNOME Foundation.