The United States Supreme Court will decide a case this term that could determine whether free software developers are liable for patent infringement by users of their software. In the case, Global-Tech Appliances v. SEB, the Court will decide whether a person can be liable for inducing another's infringement of a patent by being "deliberately indifferent" to the likelihood that the patent exists. The Software Freedom Law Center, in the "friend of the court" brief it filed today, argued that this new standard would create uncertainty and discourage free software development.

The case involves a patent on the thermal-resistant components of inexpensive deep-fat fryers, but the new standard could have negative consequences for independent software developers. Under the previous standard, it was impossible to induce infringement of a patent without knowing the patent existed. The new standard, adopted by the Federal Circuit in the case below, undermines that limitation, potentially expanding inducement doctrine to reach previously noninfringing conduct. This expansion is of particular concern to free software developers, SFLC says, because they typically produce and distribute only source code, which merely embodies abstract ideas and therefore cannot infringe patents directly.

"The unpatentability of abstract ideas has allowed free software developers to innovate freely for decades," said Aaron Williamson, counsel for SFLC. "By removing the clear limits on inducement claims, the Federal Circuit may have inadvertently exposed free software developers to claims they couldn't possibly anticipate. The Supreme Court should reaffirm its own standard, which has demonstrated no need for renovation."

The Court's decision to hear the SEB case comes shortly after its landmark ruling in Bilski v. Kappos, which addressed the legal test for patent-elligibility of processes. SFLC filed an amicus brief in that case as well, and published a collection of resources related to the case.

The SFLC is a nonprofit legal services organization established in 2005 to provide pro bono assistance to developers of free software. For press inquiries and interview requests, e-mail press@softwarefreedom.org or contact Ian Sullivan at (212) 461–1905.

Eben Moglen, Executive Director of the SFLC, testified at the Congressional “Do-Not-Track Legislation: Is Now the Right Time?” hearing held in Washington D.C. on December 2nd.

Eben's prepared testimony is available from our site [pdf] while video of the entire hearing is available from C-Span.

As per the committee's invitation, revised testimony will be made available next week.

New Dehli Office Headed by Mishi Choudhary

New Delhi, India, August 27, 2010//The Software Freedom Law Center (SFLC) will announce the opening of its new international organization in India at the upcoming Software Patents and the Commons conference in New Delhi. The expansion will allow the SFLC to continue its mission of promoting and defending Free, Libre, and Open Source Software (FLOSS) on a global scale.

Funding for SFLC, New Delhi, an independent not for profit society registered under the Societies Registration Act, 1860, comes from the SFLC's US donors and from a grant by The Soros Foundation's Open Society Institute with the charter to provide legal support to Indian institutions seeking to better the lives of people throughout India by making use of, developing, and promoting free software.

Under the direction of founder Mishi Choudhary, the SFLC's India organziation will provide reliable advice to FLOSS developers about how to organize, license and protect the freedom of the software they make and distribute.

"Advising growing projects and securing respect for their licenses in India and abroad is the core mission of our new branch,” Choudhary said. “As Indian programmers play an ever more critical role in the twenty-first century software industry, the SFLC will be there to assure they thrive."

Choudhary said the firm’s activities include preparing litigation defenses, filing patent oppositions to fight software patents, engaging in policy work to promote Open Standards, Open Access, and ensure digital freedoms. The SFLC will also do advocacy work surrounding legal issues of concern to FLOSS developers and users.

"India is a country of great promise for free culture and software," said Vera Franz, Program Manager for the Information Program of the Open Society Foundation, funded by the Soros Foundation. "We are delighted to be working with the SFLC to establish the SFLC India as a resource empowering India's creative young technologists to make a free and collaborative future that will not only advance learning and improve lives in India, but also contribute to the improvement of the quality of life and access to knowledge around the world."

The History of the SFLC's Mission in India

The SFLC has been an active presence in India since 2006. Its inaugural event in New Delhi, included prominent politicians, jurists and policy makers, along with the then Law Minister of the country, the Attorney General of India, and judges from High Court of Delhi. The SFLC has developed relationships with policy makers in the Central and State Governments, Institutions of Higher studies including various Indian Institutes of Technology and Indian Institutes of Managements, Indian media, the Indian software and developer community.

The SFLC works closely with a number of companies and institutions that are actively involved in FLOSS in India. These include: non-profit organizations like the Free Software Foundation, India, Centre for Internet and Society, Society for Promotion of Alternative Computing and Employment, Knowledge Commons, companies like Red Hat, Sun Microsystems, Confederation of Indian Industries, Government of Kerala and various political parties.

Mishi Choudhary, a native of New Delhi, will oversee the firm's work. Choudhary has been involved in information technology issues and litigation and has worked for the SFLC both in India and the United States, after earning an LLM from Columbia Law School as the first holder of the SFLC's International Fellowship.

Most recently, she has been at the SFLC's New York office working on behalf of its clients on non-profit organizational issues, GPL enforcement actions, registration and defense of trademarks and copyrights, patent re-examinations and other FLOSS licensing issues.

About the Software Freedom Law Center

The SFLC provides legal representation and other law-related services to protect FLOSS. Founded in 2005, the Center has represented many of the most important and well-established free software and open source projects, including the Free Software Foundation, the Apache Software Foundation, the Gnome Foundation, the Samba Team, PostgreSQL, the Plone Foundation, Joomla!, and Drupal. For more information, please visit the SFLC web site at: http://www.softwarefreedom.org/

Contact Director Mishi Choudhary with press inquiries by email: mishi@softwarefreedom.org

Research Cites Safety Benefits of Free and Open Source Software in Critical Technology

New York, NY, July 21, 2010//Software vulnerabilities in life-sustaining medical devices such as pacemakers and infusion pumps pose a growing threat to public health, warns a new report published by the Software Freedom Law Center (SFLC).

Killed by Code: Software Transparency in Implantable Medical Devices will be presented at OSCON 2010 on July 23. It addresses the potentially fatal risk of source code defects in implantable medical devices and explores why patients, doctors and the public should insist that free and open source software be the standard approach.

"The findings of the paper are important to anyone who has a friend or loved one with a pacemaker or insulin pump," said the paper's author and SFLC General Counsel, Karen Sandler. "Clearly, we need mandatory, public, and broad safety review of code that runs these devices. At the very least, the U.S. Food and Drug Administration must require device manufacturers to submit software to the agency for review and safe keeping."

The Software Liability Nightmare

Millions of people with chronic heart conditions, epilepsy, diabetes, obesity, and even depression depend on Implantable Medical Devices (IMDs) for their lives but the software that enables the delivery of crucial treatment remains hidden from patients and their doctors. Despite strong evidence linking critical device failures to source code defects, software is considered the exclusive property of its manufacturers and is almost never reviewed preemptively by the regulators responsible for ensuring its safety.

In 2008, the Supreme Court of the United States eliminated the only consumer safeguard protecting patients from negligence on the part of device manufacturers by prohibiting people from seeking damages in product liability lawsuits. Today, people with chronic conditions that require IMD treatment are now faced with a stark choice: trust manufacturers entirely or risk their lives by opting against life-saving treatment.

Why Free and Open Source Software is Safer

The SFLC's paper proposes a new solution to the software liability nightmare confronting the medical device field: requiring manufacturers of IMDs to make source code auditable. Research indicates that software transparency would make the devices less vulnerable to malicious hackers and security breaches and the public less vulnerable to negligence by the corporations that sell them.

As a non-profit legal services organization for Free and Open Source (FOSS) software developers, part of the SFLC's mission is to promote the use of open, auditable source code in all computerized technology. Though the paper focuses specifically on the security and privacy risks of implantable medical devices, they are a microcosm of the wider software liability issues discussed in the paper. The argument for public access to source code of IMDs advanced in the paper can, and should be, extended to all the software people interact with everyday. The well-documented recent incidents of software malfunctions in voting booths, cars, commercial airlines, and financial markets are just the beginning of a problem that can only be solved through software transparency.

To view the paper, click here

To view the Software Freedom Law Show episode about Software Freedom in Medical Devices, click here