Calling a troll a troll

Image credits: Adrienne Yancey, Troll background
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At the Linux Foundation counsel meeting in Palo Alto last week, I had a chance to talk with attorneys for some leading tech companies about the threat to open source software from patent trolls. Some still politely avoid calling a troll a troll and substitute the more anodyne “non-practicing entity.” I find the uglier term more fitting, because it's an ugly business.

When I say troll, I'm talking about an entity that produces neither ideas nor products and exists for no purpose other than to extract the maximum possible amount from companies that produce actual goods and services. Yes, I know, it's legal. But a troll is unlike most businesses. Sure, all businesses try to maximize profits, but most businesses contribute something positive back to society. It may be an innovative product, or a not-so-innovative product. Some companies are more mission oriented, while others are mainly bottom-line oriented. Obviously, there's a wide range of legal business activities and styles.

But there's no ambiguity about the purpose of a troll. It exists purely to gain lucre. It does so by threatening operating businesses with patent lawsuits, which are often unpredictable as to outcome but always expensive. The going rate for defense of a patent case starts around $3 million. In many cases, companies find the expected cost of litigation less than the cost of paying off the troll. This is less physically hazardous for both parties than, say, the kidnapping business, but the two activities have in common a brutal amorality.

The trolls have a cover story: that they just want to help inventors. They try to exploit the appealing story line of the lone inventor fighting the big guys for a fair reward. But that story has little to do with the reality of innovation in software, which is hardly ever a product of lone geniuses. Rather, software innovation is generally recognized to be cumulative in nature, with each component resting on many earlier sub-components. Trolls don't care whether the patents they buy have anything to do with true innovation, and they don't care that their threats actually discourage innovation.

There is increasing recognition in the FOSS ecosystem that troll lawsuits are a serious problem for open source. This is an unfortunate but real indicator of the remarkable success of open source. As the profits and profiles of open source products have risen, even trolls have taken note. So much for the good news. The bad news is that trolls view open source like a Somali pirate views a container ship – that is, purely as a target. Troll lawsuits are at best a tax on collaborative innovation and at worst, for a particular target, an existential threat.

Is there a way out of this mess? Meaningful reform of the law of software patents may or may not be at hand, as we await the Supreme Court's decision in Bilski v. Kappos. Whatever the Supreme Court decides, there will probably be more work to be done. But for starters, let's call a spade a spade, and a troll a troll.




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patrick's picture

At the risk of being labelled a troll myself, why are patent trolls held in such low regard within the FOSS community, whilst 'license trolls' like the Software Freedom Law Center are considered noble knights on white steeds? Both are using the (IMHO insane) intellectual property regime in a perfectly legal manner, and simply enforcing the 'rights' that IP holders enjoy...

rob's picture

Patent trolls are held in low regard in pretty much every software community not just FOSS, precisely for the reasons outlined
above. They exist purely to extract money by threatening potentially extortionately expensive lawsuits in the hope of scaring people into settling. The SFLC are working for people actually trying to do something with their IP.

Very similar method of attack as other associations who purport to protect rights holders by offering small settlements in the face of expensive lawsuits.

fontana's picture
Open Source Evangelist

FOSS community members tend to hold patent aggressors in low regard - patent trolls are a proper subset of that group. As the previous commenter suggested, the entire technology industry holds patent trolls in low regard. Although, as Rob Tiller explains, patent trolls are increasingly a problem for open source, historically they have focused their attention on proprietary software vendors and users.

Unidentified's picture

It seems more than obvious to me that in order to make a moral (not legal) judgment about any action you must take into account motivation and results of such action.

Trolls seek easy money through mere speculation and threats, acting as free-riders of distortions of the legal system (mainly legal costs and "insane" patents over abstract concepts). They hinder innovation and destroy value.

The Software Freedom Law Center (and similar entities) enforces copyright (or should I say, copyleft) licences in view of securing the basic freedoms of FOSS. Their approach is non hostile and educative. The result of their work is more freedom, more knowledge.

In view of that, in my IMHO, your comparison seems shallow and pointless. What is the similarity? Merely non-illegality? Does that equal morality?

Even on the issue of legality, "In re Bilski" will hopefully make the case that software patents are not (and were never) in line with basic principles of IP law, not even in the US.

Jose_X's picture


On an "evilness" scale...

-- 0 -- is public domain, no copyright enforcement, etc

-- 1 -- would be copyright enforcement of very liberal licenses.

-- 2 -- would be copyright enforcement of things like the GPL. It's free software, but there are some requirements/limits to edit/distribution though these always favor strict end users.

-- 10 -- is copyright enforcement where user gets few rights.

-- 100 -- would be "aggressive" patent enforcement: most software patents are very broad and are the equivalent of many copyright enforcements (even factoring in for a wide-reaching "derivatives" interpretation of copyright law), where these hypothetical copyrights are over hypothetical works that the author has not and will not produce and which the author may not even understand or have imagined in their detail and complexity.

Note, that those in the 1-2 range have to compete head on with those in the 10+ range no matter what. This is one reason why more people in the 1-2 range are not at the 0 level.

Unidentified's picture

I would say that AGPLv3 have 0 evilness because it can't be stolen, and rest (L)GPL are 1 because it has Google loophole. BSD is 5 because it helps Apple which has 100 evilness and it's run by Satan Himself, who by the way, said that he is making patent pool against Theora.

Oh, I forgot Microsoft. They broke the scale, it shows all 9... or 6.

shanecoughlan's picture
Community Member

Nuance in describing issues has a important place in reasoned debate, but one cannot mince words around serious market issues. Trolls are a problem that need to be addressed. Thankfully there is growing awareness of this fact.

Shane Coughlan
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