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The company I work for recently purchased some third party libraries from a very well-known, established vendor. There is some fear among management that the possibility exists that our license to use the software could be revoked somehow. The example I'm hearing is of something like a patent issue; i.e. the company we purchased the libraries from could be sued and legally lose the ability to distribute and provide the libraries. The big fear is that we get some sort of notice that we have to cease usage of the libraries entirely, and have some small time period to do so.

As a result of this fear, our ability to use these libraries (which the company has spent money on...) is being limited, at the cost of many hours worth of development time. Specifically, we're having to develop lots of the features that the library already incorporates.

Should we be limiting ourselves in this way? Is it possible for the perpetual license granted to us by the third party to be revoked in the case of something like a patent issue, and are there any examples of something like this happening? Most importantly, if this is something to legitimately be concerned about, how do people ever go about taking advantage third-party software while preparing for the possibility of losing that capability entirely?

P.S. - I understand that this will venture into legal knowledge, and that none of the answers provided can be construed as legal advice in any fashion.

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6 Answers 6

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It sounds like a rather silly thing to be concerned about. Realistically, if there is a patent issue, it just as likely that whatever code you are creating would be infringing as that the library would be infringing. Note that independent development is not a defense to patent infringement so it doesn't matter whether the developers knowingly or intentionally infringed on a patent and there is not much a company can do to avoid unintentional infringement.

Even if the third party library infringed some patent and was found guilty, it is unlikely that your license would be affected. Normally, the infringement suit is resolved by having the infringer (i.e. the company that distributes the library) pay the owner of the patent a fee for past infringement and a per copy fee to license the patent going forward. The owner of the patent generally wants to keep revenue flowing to the infringing company because that keeps revenue flowing into their pocket. There is generally no benefit to the patent holder in either driving the infringing company out of business or in trying to sue every customer that licensed the product.

And if there happens to be patent infringement, bigger companies generally have agreements with other bigger companies to cross license their patents to each other. Otherwise, they'd all spend huge sums in court every year suing each other and being sued because they all violate each others patents (inadvertently) all the time. So it's in everyone's best interest to ignore those violations. A third party software vendor is generally in a much better position to have a patent of their own that they can agree to cross license to whoever owns the patent they violated in exchange for dropping the suit. Unless your company also happens to be in the software development industry (which sounds unlikely), you wouldn't have a patent to cross-license if there was a dispute.

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"It sounds like a rather silly thing to be concerned about" - I whole-heartedly agree, and if it were my decision, we wouldn't be spending time on this subject. But I'd like something to back that feeling up - do you have any examples of the "normally" situation of your second paragraph? –  Ian Pugsley Jun 29 '11 at 21:25
    
@Ian: while @Justin is correct on paper, this can actually have genuine and extreme consequences in banana republics such as the united states - where a company can trademark a sound or patent a concept/gene/line of code. –  Denis de Bernardy Jun 29 '11 at 21:35
    
@Ian - Obviously, there are lots of specific patent suits. Picking one at random, when NTP sued RIM for infringing their patents> when producing the Blackberry, part of the settlement was that RIM licensed the patent from NTP and was allowed to continue selling their products money.cnn.com/2006/03/03/technology/rimm_ntp –  Justin Cave Jun 29 '11 at 21:48

If your managers are concerned about the libraries they are currently using, they should replace them with other libraries. It does not sound to me like you are worried about risks that have actually happened to others, while worrying about risks that I've not heard happen.

One situation that happened at my previous employer was that an older product relied on a 3rd party control. This control used aggressive DRM to ensure that devs didn't pirate the app. In the meantime, the vendor went out of business, so any computer that failed could no longer have this control installed (to develop with). We were trying to replace this VB3/VB4 (with a few parts written in .NET 1.1) with an all-.NET application. The first re-write failed. The second re-write was reasonably successful, but was 2 years behind schedule when Vista surprised the pants off us. No VB app using VBXs could be made to run on Vista. Nope. No savings throw. And we didn't know this until customers started calling the help desk. It was the following summer before we had a .NET replacement that mostly worked. Before the .NET replacement was ready, there was one and only one computer remaining with the development license for this control. The dev that originally used that computer had quit several years earlier, so we had to keep his old computer limping along until the application was completely rewritten. All for a stinking file-open dialog that the boss loved.

No, this was not Visual Parse; that control developer also quit/died/went out of business/joined a band and stopped issuing unlock codes. If your computer broke and needed replacement, or even just needed some parts replaced, then it was going to need a new unlock code (the hardware profile would change enough to need re-activation), which was impossible.

A control that my current employer used in a VB6 app has no equivalent .NET version, and the vendor has no intention of making one. Consequently, the .NET rewrite needs even more stuff written just to maintain existing functionality.

Microsoft has been claiming that the VB6 runtimes won't be distributed in future versions of Windows (past Win7 and Server2008), so software vendors might be in for a Vista-sized world of hurt when Win8 comes out.

One previous employer required vendors to escrow the code used to make the controls. They paid a lot more for this, but it paid off when one of the vendors decided to quit making the software. It was a plugin for Indesign, and the replacement was about 25x more expensive. Being able to get the code out of escrow solved the problem for these guys and saved their bacon.

I think your managers should be more worried about the vendor deciding to stop making the controls - that seems to be the highest risk. The second highest risk I've seen is that when new operating systems come out, they don't (or can't) migrate to support the new ones.

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Should we be limiting ourselves in this way?

Yes. If the people paying you have made the decision that it's too much of a risk, against your advisement, your duty is to go cost them thousands of dollars in the completely useless venture of NOT using the library they paid for. Assuming you've advised them as to the costs involved, and assuming you haven't just let your immediate superior make the decision for his managers, you've done your due diligence and now need to live with the decisions of those writing your paycheck.

So long as they're not being unethical and doing something negligent, it's your job to do what they want you to....not what you think you should be.

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Two concrete suggestions...

If the library supplier is "a very well-known, established vendor", you could simply verify that they've never lost a patent infringement suit. People like that don't generally put themselves in the way of such suits.

Also, you might ask the library supplier to provide you with a letter indemnifying you against patent infringement. They may be particularly willing to do this if you're paying for ongoing maintenance.


I gotta say, whoever came up with this sounds like a real "nervous Nelly". If you want to have some fun, you could mention to them in the hallway that just two nights ago, a 600 ton asteroid passed so close to the Earth, the British garrison on the Falkland Islands was closer to it than they were to Tokyo.

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Should we be limiting ourselves in this way?

No.

But there's nothing you can do about an idiot who fears the license could be "revoked" (whatever that means) and decides to spend good money pursuing a bad work-around for this fear.

Is it possible for the perpetual license granted to us by the third party to be revoked in the case of something like a patent issue, and are there any examples of something like this happening?

It doesn't matter.

Once someone has decided that they fear revocation, no amount of evidence will change their minds.

What do you do?

Don't worry. Be happy. Collect your pay. Write silly, duplicative software. When the project is cancelled because all you did was reinvent the wheel, find another job.

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Knowing what I know about the individual with this concern, the statement that they are an idiot and that no amount of evidence will change their mind is an incorrect one. The answer to any problem can be "stop worrying, do what your superiors say, and leave when the timing is right" - I'm looking for people's general approach and concern to this specific issue. While I'm sure this would work for me personally, I am concerned with the overall affect this would have on the company and our development efforts. –  Ian Pugsley Jun 30 '11 at 4:31
    
@Ian Pugsley: The superiors are the idiots (they have the concern; they're asking for the duplication.) The company -- as I said -- will fail because the lack of value produced for the money spent. The end result will be finding a new job. How could I make it more clear? That's what the answer said. –  S.Lott Jun 30 '11 at 9:40

The example I'm hearing is of something like a patent issue; i.e. the company we purchased the libraries from could be sued and legally lose the ability to distribute and provide the libraries.

Basically, it breaks down to the indemnity clause. What does yours say? "We stand behind our software" or "You're on your own"?

Take a recent example. A patent troll sued app store devs for breach of a patent. But Apple indemnifies the app store devs when using its dev platform. So they stepped in. (And they'll win, I think. But IANAL, so don't trade on that.)

By contrast, if you use FOSS, the default clause typically is "you're on your own, thank you very much | use at your own risk | f*ck off and die". If someone wants to sue you, they can, and will.

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