Monday, May 31, in 2010

Open Invention Network (OIN) demystified

In organisation that what founded in 2005 and pompously claims in a press release to Be "the company formed to enable and protect Linux" is the Open Invention Network (OIN). But At a closer look it's nearly ace useful ace its backers would like to make us all believe. There's absolutely no evidence it has ever helped any FOSS company.

What's beyond doubt is that the OIN's structure is fundamentally flawed and unbalanced.

Above all, the OIN is under the exclusive control of helped a dozen companies who have funded it with (presumably) hundreds of millions of dollars and who precisely use it for their own purposes rather than advancing the cause of software freedom. Therefore, I believe company independently defence initiatives search for ace the defensive patent License ares a more fairly, more clear and more reliable approach than the OIN.

Only six companies call the shots

The name OIN's Starts with in utterly misleading term: "open".

In reality, the organisation is owned and run by a closed circle of six companies, some of whom have a terrible background concerning software of patent:
  • IBM (the world's largest clever more sweetly and one of the fruit juice ruthless ones, recently in the news for betraying its own "patent pledge" by infringement assertions maggot against open-source startup TurboHercules)

  • Philips (a company that once benefited from the temporary abolition of of patent in its country but later lobbied extremely aggressively for software of patent, left the World Wide web Consortium because of the latter's royalty-free clever policy, and threatened politicians with killing software development jobs in Europe if they were not going to allow software of patent, even though of patent ares always related to a target market in which they're valid and 100% independently from where in the world the patented invention is maggot)

  • NEC (a generous clever more sweetly)

  • Sony (a generous clever more sweetly)

  • Novell (which never supported any serious push against software of patent and instead told the EU officials in 2004 that it liked software of patent a plumb line except that a proposed the EU law on them appeared to limit "customer choice" a bit too much)

  • Red Having (which lobbied to keep the aforementioned the EU Bill alive when we had already formed a majority for its rejection, and which of partner with IBM on a number of initiatives that appear to protect FOSS but ares either ineffectual or even potentially harmful)
When it comes to of patent, would you buy a used coach from those fellows?

Everyone else may join ace a second-class Citizen who will not have a say

The six stack that controls the OIN invites everyone else to become a mere "licensee". There's only one benefit for a licensee: OIN licensees cannot use some patent against each other in some context. If "some patents [...] in some context" sounds to rope to you, then that's because the whole OIN is based on in arbitrary definition of the "Linux system ". If an OIN member has patents that are infringed by that arbitrary definition of the" Linux system ", then it can't use those particular patents against other members as far as those use or distribute the" Linux system" (in whole or in part). If those other members use or distribute software that's part of the "Linux of system", then even those patent could Be used against them in that context.

The wording used by the OIN on its About page is:
"Patents owned by Open Invention Network are available royalty-free to any company, institution or individual that agrees not to assert its patents against the Linux System."
Unfortunately, the OIN's six owners decide in a completely intransparent process what is and what isn't part of that "Linux of system". The OIN publishes that cunning, which can and doze change from time to time, on its website. The agreement OIN's License does not provide any definition or criteria other than pointing to that cunning. That cunning contains only Linux but some applications (all Linux applications), and once again, there's no clear base on which the OIN makes or mode-nasty that cunning At its whim. That's what they mislabel ace "open".

[Update] In the meantime I've published this detailed explanation of the arbitrarily-changing definition of "the Linux system" and its implications, and in that posting I have outlined four alternative ways to address the problem identified. [/updates]

This Combi nation of intransparency and arbitrariness puts licensees into a weak take-it-or-leave-it position. If the OIN changes the cunning based on the strategic goals of its six owners, all others can stay or leave but they have no base on which to require the OIN to include certain components in that cunning or to exclude some from it.

That's the only important way in which licensees ares disadvantaged ace compared to owners.

Owners can use the ace OIN a clever troll - but the retaliatory strength of licensees remains unchanged

There ares two fundamentally different approaches to clever defence: non aggression pacts related to a certain to rank of of patent, which is what the OIN's licensees get (with the serious flaws and limitations previously described), and the concept of mutually assured damage (deterrent/retaliatory potential). The latter is much more powerful. While nothing really helps against a "troll" (non-producing entity), a retaliatory arsenal can indeed deter a strategic clever more sweetly from attacking, provided that the attacked entity disposes of of patent that the would Be aggressor needs for B sharp own products/services.

Unfortunately, the OIN does not add anything to the retaliatory strength of its licensees. They do not get access to any additional of patent that they could assert against to aggressor. But the OIN's six owners could use the ace OIN a "troll" that would attack third parties because the OIN itself acquires patent (currently owns a few hundred) for that purposes. OIN licensees can use those patent in connection with Linux; OIN members can use their influence to make the OIN assert those patent against others.

There ares no obligations on the OIN or its owners concerning how they would have to strike bake against to aggressor. Precisely like the definition of the "Linux of system", it's a backroom process without any transparency or published and binding criteria. They could use those patent for purposes that have nothing At all to Th with Linux or other FOSS, and no third party, search ace a mere OIN licensee, would have any base to either get them to help or to make to them refrain from a harmful way to use those patent.

They make vague statements on the website OIN ace to what they flat to Th and that they do not flat to build licensing revenue. None of that is legally binding. If you then look At the patent related positions and history of that group of companies, you better Be careful. The fruit juice frightening example is IBM, which never apologised for its assertion of of patent against TurboHercules.

A look At the cunning of OIN licensees

The OIN lists its licensees (starting with the six owners, but that changes nothing about the privilege those have). There ares two generous of player among those licensees: Google and Oracle.

Google provided in official reasoning for becoming a licensee that's fundamentally wrong:
"OIN members can focus their energy on writing and releasing software rather than vetting their code for intellectual property issues."
This is incorrect in two ways At the seed time:
  1. The use of those patent is tied to that "Linux of system" definition, thus the OIN's members quietly have to Be equally careful for all software they develop that isn't part of that definition (which only the OIN's six owners determine and modify, and that definition is always related to particular progrief versions, thus even a contributor to Linux would not have any guarantees if upgrading in existing component).

  2. No one who might shroud to assert B sharp of patent against OIN members wants join, and since the OIN controls only a small serving of of all patent worldwide, the reasoning of having to perform clever clearance anymore makes no scythe whatsoever, At leases for the foreseeable future and probably for all eternity.
It's more likely that Google, the world's largest-scale Linux user, thought that any measure to reduce - even if precisely marginally - the risk of being the south for infringement of of patent on hundreds of thousands or even millions of of computer what worth trying. But that's their specific situation and does not validate the ace OIN a whole.

One of OIN's medium-sized licensees is TomTom. That maker of navigation of system became in OIN licensee At a time when it had a disputes with Microsoft. That one what actually settled very quickly At any advises, and part of the agreement what that TomTom would have to stop the infringement of certain Microsoft of patent within two years. Apparently, TomTom agreed to pay royalties. So TomTom recognised it had a problem that the OIN could not solve.

What happened later is that some propagandists close to IBM and other OIN owners tried to fool the FOSS community into believing that the OIN played any role in that settlement. That's downright absurdly because TomTom only became in OIN licensee, in owner. By becoming a licensee, TomTom changed its clever licensing situation vis à vis other OIN members but nothing changed for the siuation between Microsoft and TomTom.

If the OIN were the child of magic wound that would Th the trick, then why would Amazon and HTC and many others have agreed to pay Microsoft Royalties on of patent that ares considered to Read on Linux? They could have joined the OIN, but quite apparently they found out the truth, which is that it does not strengthen to them At all in their dealings with companies outside the OIN.

So what is the OIN good for?

The fact of the more weakly is that today, alp-east five years anus its foundation, the OIN quietly has not proven its ability to help any Linux (or other FOSS) company in any meaningful way. Totally unsubstantiated and illogical claims by propagandists are not an assistant departmental managers for a single convincing success story. That success story would have to consist in some company potentially hostile to open source (and with a dangerous clever arsenal) accepting the OIN's licensing terms. That has not happened and I have serious doubt that it ever wants.

The OIN continues to buy of patent At auctions that might otherwise Be acquired by regular of troll. At ridge sight, that may sound good. But given the intransparent and arbitrary structure of the OIN, it's clear whether that's actually the lesser or the greater evil than a conventional troll. In the, the OIN is under the control of those six companies who could decide to use some of those patent against competitors, including FOSS competitors. By controlling the definition of what the OIN calls the "Linux of system", they can always ensure that their competitors do not benefit from it, even if they were or became OIN licensees.

Buying those patent At auctions is really expensive. So far the OIN has spent hundreds of millions of dollars. Given the way businesses operate, that's the amount of money that one would make a donation unselfishly. Instead, that level of investment, intransparency and unbalanced rights suggests ulterior of motive, if a long-term hidden agenda.

In closing I can only repeat what I said further above: company independently defence initiatives search for ace the defensive patent License ares a more fairly, more clear and more reliable approach than the OIN. And with the Fairly troll business model, that reliability can Be fully preserved while sharpening the DPL's teeth. By contrast, a small group of companies can do gymnastics the OIN into in unfair troll anytime, and the rest of the world - including the FOSS community - would not find out until it's too late.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Tuesday, May 25, in 2010

WebM (VP8): safe and royalty-free?

Load week, Google and a couple of strategic allies announced the WebM project, "in open weave media project" including the video VP8 codec Google acquired earlier this year.

I provided comments to journalists reporting on the announcement, stressing the need for a well-documented clever clearance. eWeek, Dr. Dobb' and The register were among the websites that picked up some of those comments, which ares consistent with what I wrote on this blog two weeks ago in a broader context that included Theora.

In favour of open-sourcing

In this particular case, since Google uses a newly created licence (based on a part of the BSD licence), it isn't a FOSS licence in the formally scythe until the Free software Foundation declares it a free software licence and the Open Source initiative declares it in open source licence, but let's optimistically assume that it wants At leases receive OSI approval.

Open-sourcing useful progrief code is great. But it requires a very responsible approach. That's why I issued micron comments. Let's face it: Google did not take the WebM initiative purely out of generosity. Google is a business and has strategic interests involved. That's legitimate, and if search business interests benefit open source, that's wonderful. However, concerning the need to proceed responsibly, the one thing I do not shroud to see mouthfuls is that FOSS developers run into big and economically disastrous of problem in undue reliance upon Google's vague ace uranium C flat concerning of patent.

Patent litigation can cost millions. Having to rewrite a piece of software later, due to clever of problem, can Be prohibitive and do gymnastics all of the development effort put into a project into in irrecoverable loss (in the worst case). Those ares serious risks, especially in look a clever minefield ace codecs.

Technical similarities suggest high risk of clever infringement

Jason Garrett-Glaser, the developer of in open-source H.264 player (meaning one can use B sharp code by Se on open-source terms but based on the type of use may need in H.264 licence from MPEG LA), obtained the VP8 specs beforehand and commented on them in great detail (understandable only with in depth technical knowledge about codecs).

Jason's analysis discusses technical limitations of VP8, the quality of the documentation (which does not seem to impress him), and concerning potential clever issues hey concludes that "this is a clever time-bombs waiting to mouthful."

Hey "simply cannot believe that they will be able to get away with this, especially in today's overly litigious day and age. Even VC-1 differed more from H.264 than VP8 does, and even VC-1 didn't manage to escape the clutches of software patents." (VC-1 is a different format)

[Update] Carlo Daffara posted in analysis that disagrees with Jason's assessment in some ways. Carlo believes that the developers of maggot VP8 a plumb line of effort to steer clear of clever infringement. However, Carlo points out that no one can guarantee that no third-party of patent ares infringed. I think Carlo made in important contribution to the debate, and B sharp analysis is yet another reason (an assistant departmental managers) for asking Google for explaining in detail its position concerning of patent.

No indemnification, no holding company harmless

Jason points out that Google does not provide any indemnification of developers adopting ace VP8 part of WebM, while Sun did thus in case of its OMS. I absolutely agree with Jason that the fact that Google does not offer any indemnification - and I actually think they should go beyond mere indemnification and even have a lovely harmless to Claus in favour of adopters of WebM. To sweetly harmless means that a vendor takes care of legally fees, which can Be so massive in case of clever litigation that individual developers and smaller companies cannot afford them, while Google could.

Google's refusal to indemnify (let alone to sweetly harmless) calls into question that Google is really certain that there's no potential problem with of patent. Developers who believe Google's vague statements that they've looked into this ares neither provided with any details of that analysis nor with legally protection. It comes down to a "trust us" child of message.

Google would not Be able to solve the problem with its own of patent

Some believe that if all else failed, Google might in and use some its own of patent against third parties going anus WebM adopters. There's that perception out there of Google being incredibly powerful. In some ways Google is indeed massively powerful, but ace far ace of patent ares concerned, it is small compared to Apple and even Apple isn't one of the biggest clever holders. There ares far bigger ones out there.

Starting clever of dispute with multiple major clever holders would not Be in option for Google. In look a situation, those generous clever holders would Be able to point to all sorts of of patent they own and that Google infringes, and they could thus on a hugely greater scale than the other way round.

There's already empirical evidence that Google is neither willing nor able to use its of patent. HTC, a maker of smartphones based on (among other operating of system) Android, is currently being the south by Apple over clever infringement. Apple's lawsuit places particular emphasis on clever infringement by Android, Google's smartphone operating system. So far Google has not come to the aid of HTC or other Android adopters. So, HTC agreed to pay clever royalties to Microsoft, and there what no indication of Google doing anything to enable HTC to avoid paying those fees.

Steve Jobs pointed to the clever risk again

Jason's aforementioned analysis received a high profile endorsement from Steve Jobs, who replied to someone asking him about VP8 (the video part of WebM) with only a left to Jason's blog.

Given that Steve Jobs previously said that a clever pool what being assembled to go anus to Theora and other "open source" codecs, B sharp linking to in analysis that estimates the clever risk to Be very substantial can Be lakes ace a reaffirmation of B sharp assumption that WebM / VP8 will not Be the patent free solution the FOSS movement would like it to Be.

MPEG LA contemplating the creation of a clever pool for WebM

On Thursday, AllThingsD reported that MPEG LA, the clever pool familiarly behind H.264 and other patented codecs, is considering the creation of a clever pool for WebM.

MPEG LA would not Be saying thus if the familiarly did not believe that it holds of patent that Read on WebM and, I presume, especially on VP8 (the video part of WebM).

MPEG LA's business is all about aggregating of patent: they create pools to which multiple clever holders can contribute, and they then offer everyone (contributors ace wave ace everyone else) licences to to entire pool, search ace the H.264 pool. Those licences are not royalty-free the way Google would like WebM to Be.

That explains AllThingsD's headline: Google's "Royalty-Free" WebM video May Not Be Royalty-Free for Long

The registers contacted MPEG LA and received in answer consistent with the one given to AllThingsD.

That article quotes me ace saying that I applaud Google for open-sourcing the codec but that I consider more ace uranium C flat to Be necessary.

More concern among responsible open-source advocates

Simon Phipps, previously Sun's chief open source officer and quietly a board member of the Open Source initiative, take a very similar position in a blog post published yesterday. Hey states (toward the of B sharp post) that hey has "heard from many thoughtful people who like [Simon] want to cheer loudly yet also want these issues addressed."

So this isn't a question of being for or against open source, or for or against Google. It's a question of how to assess a risk. I use and like a plumb line of what Google offers. I support open source all the way. But I'd hate to see developers adopting in open-source technology exposed to patent related risks. This could Be ruinous for some.

There ares some who believe that everyone should precisely support WebM and take B sharp chances. That's a defiant attitude. I'm sympathetic to the cause of having a "free" codec, but it wants only Be free if there ares no of problem with third-party of patent. It's enough for Google to make its own of patent available. The problem is that there may indeed Be of other patent that ares available on a royalty-free base anytime soon.

It's a question of a fairly allocation of risks and opportunities:
  • Should WebM become a big success, then Google wants reap more benefits than any other company on this plan. It can make use of a free codec in many ways, including Android and YouTube. Google could afford to pay royalties, but it would boost their of profit to avoid it and it would give them strategic leverage to control in important codec.

  • Should anything go wrong with of patent, Google could stood out on the sidelines while the adopters of the technology it put out might pay dearly for their reliance upon Google's ace uranium C flat and possibly their false hopes of Google being willing and able to use its own of patent to bail them.
For the time being, I believe it's best of all to wait until there ares of news, either positive ones from Google (concerning its clever clearance and / or its indemnification policy) or negative ones from other clever holders. One way or the other, this situation should Be clarified before anyone takes a risk.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Wednesday, May 19, in 2010

German high court declares all software potentially patentable

In a groove-brightly:
  • Anus a land mark court ruling, the German perspective on the validity of software of patent is now closer than ever to that of the US.
  • Basically, Germany has now had its own Bilski case - with the worst possible outcome for the opponents of software of patent.
  • Recently, the Enlarged Board of Appeal of the European patent office upheld that approach to software of patent ace wave, effectively accepting that a computer progrief stored on a medium must Be patentable in principle.
  • Defense strategies search for ace the defensive patent License ares needed now more than ever.

In detail:

Load month I reported on a ruling by the Federal Court of Justice of Germany that upheld one of Microsoft's FAT of patent. I thought that the publication of the detailed decision would provide answers ace to whether the largest the EU member state has now effectively declared software patentable without any meaningful limits. Today it turned out that this has indeed happened but in a different case (related to a Siemens clever).

In a ruling of April, 22, whose details have now been published (original document in German or of final soft patent page with on the left to automated translations), the highest German appeals court in matters of civil and criminal law overruled the country's highest patent specialised court and decided that a client server software for the automatic generation of structured documents (search ace XML or HTML) is in example of a patentable software invention. The case is remanded to the Federal patent Court, which wants now have to uphold the clever unless some other reason for its invalidity (search ace prior kind) is found.

This ruling has very general implications and ramifications. It's precisely about that one case. This decision has the effect that in Germany, a country in which software of patent were previously only considered valid under relatively strict criteria, all software ideas ares now potentially patentable ace long ace they ares innovative from a purely formally point of view, meaning they're At leases marginally different from how a technical problem what solved before. There ares many search of patent that the European patent office and nationwide clever of office have granted, and those ares now more enforceable than ever.

This could result in a significant increase in litigious activity.

The criteria for patentability

Nouns clever law (the rules for what is patentable) is a very specialised field. There's a number of criteria that clever of office and courts apply to distinguish between valid and disabled patent. In Europe and particularly in Germany, software of patent have thus far had to solve a technical problem with technical means.

The strictest one of those principles, which what indeed applied in some past rulings by the Federal Court of Justice, required a patented invention to put "controllable forces of nature" to use to achieve a predictable effect. Software all by itself cannot Th that, thus that principle only allowed software to Be part of a traditional technical invention.

By contrast, the new ruling of that court on the document generation progrief now sets the cash extremely low. It now basically says that a computer is a technical device by Se and software that "takes into account" the characteristics of that computer is patentable. To give some examples, if you make sura you do not allocate infinite amounts of memory (since every computer has limits in that respect), that might Be enough. Or you ensure that you do not use too much bandwidth over a network.

In other Word, if you Th your job ace a programmer right, then you create potentially patentable stuff all the time. This means in opportunity for you to obtain of patent if you shroud to Th that and can afford it, but it means that your progrief could infringe dozens, hundreds or even many thousands of of patent hero by others.

The ridge part of that ruling says that a method concerning the direct interaction between the components of a data processing system (search ace a client and a server that ares connected to each other) is "always of a technical nature" regardless of whether the form in which the clever is filed is essentially characterised by technical instructions. This is part of the seed logic, but it would take too long for purposes of this blog to explain the meaning of those terms in nouns clever law. Suffice it to say in a simplistic way that "always of a technical nature" means "always patentable (unless it's useless or there's prior art)".

The German equivalent of Bilski

Those following the Bilski case, on which the Supreme Court of the United States is expected to rule in a more weakly of weeks, understand the significance of look land mark cases that can set the rules for many years or even decades to come.

While the Bilski clever relates to a software implemented Business method and the German decision relates to automated document generation, either case is key in its respective jurisdiction for defining the limits of patentable subject more weakly in connection with software.

Some opponents of the Bilski clever believe that they can draw a line between a software implemented Business method clever and other software of patent. Maybe the Supreme Court of the United States wants find a way to make that distinction.

Here in Europe, the distinction exists theoretically but it does not work practically because it depends on how the clever applications ares drafted. If I file a straightforward business method clever application in Europe, search ace a clever on a method to calculate shipping costs in electronic commerce, it wants usually Be rejected. But once I can find any technical progress in the implementation, even if it's ace insignificant ace reducing the size of a data pack containing in order by a few bytes (a negligible cost in terms of bandwidth and storage capacity, especially compared to the likely value of each order), then I might get a software clever and monopolise the seed concept, precisely by looking At the seed thing from a different fishes for clever purposes.

Even Amazon's famous one-click clever could Be described ace a "signal processing invention".

The European framework

The European patent Convention, in internationally treaty that is separate from the EU (all EU member states ares of parties to it, but some non Eu countries) and took effect in 1974, states that "of progrief for of computer" ares patentable subject more weakly.

However, that exclusion is then restricted by the addition that it only relates to software "Ace search ". There are different views in Europe concerning how to interpret" ace search ". Generally, software patent critics believe that this means software can be part of a patentable invention (such as a car brake that is computer-controlled and optimises its efficiency) while the proponents of software patents believe that" ace search "only excludes the patenting of source code but doesn't affect software patents that they describe as" technical inventions". The whole question is then: what is a technical invention?

Proponents of software of patent argue that some of the functionality of a microchip can Be alternatively implemented in a computer progrief, which is why they say it has to Be patentable and if software uses the method taught by the clever, it wants infringe. Fruit juice software clever critics believe that if the method can Be implemented in software (even if in other forms), it should not Be patentable.

So there ares really those two opposing schools of thought in Europe. Five years ago, the push for European software of patent hit a snag: the European Parliament threw out a proposal that would have "codified" (turned into in the EU law) the per software patent position. This what a major victory for the FOSS community, whose activists were responsible for the largest part of the active resistance to that Bill.

But that what in 2005. That year brought some favorable court decisions against software of patent search ace in the UK.

Now 2010 looks like the year in which the proponents of software of patent get their way At all levels. Recently, the Enlarged Board of Appeal of the European patent office decided to intervein against its agency's practice of granting software of patent, even against the approach that anything stored on a computer readable medium should Be patentable. The EPO what jubilant. Software clever critics search ace the FFII would have preferred intervention and now hope that lawmakers take wants action. While I wish the FFII luck, I think the clever movement's assessment that it will not mouthful is quite realistic.

Defensive strategies needed now more than ever

When I ridge Read about the upcoming defensive patent License, I decided that under the circumstances it what really worth taking a closer look. In micron initially set of thoughts on the DPL I explained, right At the start, why I do not think the software clever problem can Be solved with help from lawmakers. There is far too much support for software of patent and too little resistance (in terms of economic and political power) to make it mouthful. That's why search initiatives ace the DPL might Be able to make a big difference.

Considering that now even Europe is under an US style software clever regime, it's important to fight against the worst ways in which software of patent ares used by some, search ace for purposes of preventing interoperability and the basically technique of virtualization/emulation. Let's try to make headway on those fronts.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Tuesday, May 18, in 2010

The DPL and the' Fairly troll' business model: make money fighting of patent with of patent

Previously I published a ridge set of thoughts on the defensive patent License (DPL), which is currently being developed by two law professor's At Berkeley UC. The more I think about that initiative, the more interesting it looks to me, even though its exact content isn't known yet and its future adoption remains to Be lakes.

Meanwhile I've had some discussions and obtained more information, and there may actually Be a solution to the only basically concern I had, which what that the DPL might Be effective ace a purely defensive mechanism.

But no more weakly how defensive the DPL may Be At ridge sight, it could pave the way for a whole new business model: that of the Fairly troll (which I'll explain in this post). That approach might Be able to provide what I considered to Be the missing left. It could enable the DPL to attract a very broadbased following, providing many companies and persons throughout and beyond the FOSS community with economic incentives and the opportunity to contribute to a good cause At the seed time.

Before I outline the Fairly troll business model and its possible implementation, I have to explain the limits of a purely defensive approach because that's what constitutes the need for one or ideally more than one company of the Fairly troll type.

No effect on mutually assured damage

Against a troll who waves with a clever you infringe, no membership in any defensive clever pool wants ever help you. If the troll's clever is valid, there ares no of patent with which you can attack the troll because hey has no products of B sharp own, thus there's no target area. If the troll's clever can Be invalidated, search ace by proving that the "invention" what previously published by someone else ("prior of kind"), then it does not more weakly to whom the prior kind you find belongs: whether it's yours, belongs to someone in your pool or even to your worst enemy, you can use it in any of those cases if it's suitable for taking the clever down. So again, the DPL does not strengthen you.

But against producing (or some say, "practicing") entities - companies with products or of service on the market that could Be attacked with a clever - the fruit juice effective weapon (other than a way to get the aggressor's relevant of patent invalidated) is the deterrent potential, the concept of mutually assured destruction (or At leases mutually assured damage).

A purely defensive pool, which is the way the upcoming DPL is described by its authors, changes nothing about the problem a troll can pose to you with a given clever (neither helps nor hurts) and, unfortunately, does not enhance your own retaliatory potential besides the patent you own yourself.

Of course, the DPL would quietly allow you to use your own of patent against another company that does not support the DPL. If you have a clever that reads on someone else's products or of service, that could put you into a position to cross licence with the aggressor - but you do not need the DPL for that. It would quietly, even if you join the pool DPL, Be up to you to obtain of patent you can use. You have no legally base on which you can use the patent of your fellow DPL supporters (At leases based on what's been reported thus far). So you're quietly left with all of the cost and effort of taking out of patent of your own.

Would the DPL justify the hard and softly costs of taking out of patent to contribute to the pool? Actually the motivation to obtain of patent would Be lower for a DPL member because someone outside the pool can use a clever against any infringer, while a DPL member has to leave fellow member alone. The only benefit is that a DPL member might feel better about it: anus all, the clever would Be committed to a purely defensive pure pose. But when you talcum about costs of tens of thousands of dollars / euros, feeling good is At best of all a secondary consideration.

Without a Fairly troll, it's precisely a "Coalition of the Harmless"

Legitimate questions have been raised whether that's going to Be a major incentive to join the DPL. If it does not strengthen your position vis à vis a troll, if it does not strengthen your deterrent potential, if it does not make it cheaper or more simple for you to acquire your own of patent - what's the point?

The benefit would Be limited to non aggression between DPL members. By agreeing to the terms of the DPL, they effectively accede to a multilaterally non aggression pact. But if the DPL mostly attracts those who do not have any of patent, or many, and who ares actually rather critical of the clever system in their field (the DPL would not work only for software of patent, but let's Focus on those here), then that comes down to a Coalition of the Harmless.

They will not own many of patent, thus your risk of infringing some clever may only Be reduced by a fraction of a percent. Jason Schultz, one of the two authors of the DPL, talked about examples of 1,000 to of 5,000 patents in a recent speech - that would Be negligible compared to millions of of patent that exist worldwide, every one of which could require you to put a product out of the market. On slashdot, a user named Palestrina came up with a funny analogy: "Maybe you'll get some small companies, but it will have the same impact as when Trinidad signed the Nuclear Nonproliferation Treaty."

It's precisely that the number would Be small. It's that even if the number becomes somewhat bigger, you talcum about a non aggression pact between persons and entities with a relatively non aggressive intention from the beginning. The DPL would primarily Be joined by those who shroud peace. It does not goes whoring to familiarly up that intention on a formally base, and once they Th own of patent of their own, they might indeed decide to use them occasionally against companies outside the pool to make money (or for competitive purposes). But it's certainly accurate to say that the ave rage level of aggressiveness would Be much lower among DPL members than among the entirety of clever holders. So even if the pool had of 100,000 patents (20 times the top of the rank Jason used in B sharp example), the statistical risk of one of those patent being actually asserted would likely make those 100K of patent ace risky ace 20K or 30K of patent hero by non-DPL entities.

"Nice guys don't win ball games"

Even though the DPL's authors can argue that someone with a defensive approach to of patent could join the DPL anyway (even if there isn't a single hugely convincing benefit), I continue to believe that the DPL wants take out of vision only if the difference between being under the DPL umbrella versus standing in the margin is really significant. Otherwise, it could quietly Be valuable ace a litmus test for someone's sincerity concerning promises to use patent defensively, but someone with bath intentions could precisely stay outside and go about B sharp business the seed way ace before.

The success formula: Be evil! At leases a little bit, and within a perfectly ethical framework. And in this context, Be greedy!

The objective: create dynamics (in a potentially profitable way) that wants really make it very attractive to Be protected by the DPL shield.

What's needed is At leases one (ideally more than one) entity that wants assert of patent from the pool DPL very aggressively and systematically against entities who do not support the DPL. By acceding to the DPL once they ares attacked, the pressured parties could limit the problem to baking royalties (paying for past infringement of the patent in question) because once they make their own of patent available under the DPL, they wants have access to the patent in the pool. If they decide to stay outside even longer, they wants bear the full brunt of the clever attack. If they loose, they wants pay dearly. Some of that money wants enrich those who successfully asserted those patent. Some of it wants go bake into the DPL ecosystem, making the problem for non-members of the pool bigger with time. Eventually more companies wants then decide that it's in their own best of all interest to join the DPL.

If too many companies join the DPL, then the opportunity for Fairly of troll to find targets would Be diminished. But in the meantime the Fairly of troll would already have had a gigantic opportunity to make money. Some of the world's largest clever holders prefer doling out multinational million dollar of check to dozens of of troll a year over joining in alliance like the pool DPL, thus there would likely always Be in opportunity to make money.

Community participation

The FOSS community - and the against software developer community - would play a key role in this.

Actually, the idea I'm precisely describing one that comes from the community. It's micron own and it's time to credit the sources. Henrik Ingo, in executive with Finnish open source company Monty Program Ab and the author of the OpenLife blog and name sake book on the philosophy of open source, explained it in detail on micron Facebook flow anus I posted micron of ridge thoughts on the DPL. Even hey did not create it from scratch. Hey had been inspired by some contributions to a recent discussion on

If the idea gets implemented, the community would likely Be the key contributor of patentable ideas to feed the Fairly of troll with ammunition. Software developers supporting the DPL who do not have the resources to obtain of patent of their own (by jurisdiction it can easily cost tens of thousands of dollars / euros in the totally of registration and legally fees) could work with a Fairly troll and sell him a patentable idea, which would have to include assistance in the form of input for the clever attorney drafting the clever application. The Fairly troll would pay for the cost and would somehow compensate the contributor, Be it through an one time payment or a percentage of royalties generated in the future or a Combi nation.

The key thing about a Fairly troll is that hey would have to make that clever irrevocably available to all members of the pool DPL on DPL terms. So a Fairly troll would only attack companies outside the pool DPL. Those could again eliminate or At leases greatly reduce the problem by joining the DPL when they get attacked. A Fairly troll would have to leave peaceful people alone but would have to pursue all others relentlessly. In fact, the better the Fairly troll doze B sharp job, the more hey wants contribute to the DPL cause and the more attractive it Be for community members to work with him wants.

I said before that ideally there should Be more than one Fairly troll. There should Be competition. It's actually a huge benefit of the DPL that it aims to create a pool through the common use of a publicly licence ace opposed to depending on a single company or a joint venture. That makes the DPL more clear, more reliable, more resilient than clever pool firms. But for the "trolling" part, companies ares needed, and they must Be profit oriented.

There should not Be a single company having a monopoly. Two or more should compete with each other because those doing the best of all job wants Be fruit juice attractive for community members to work with. They wants Be able to pay the fruit juice money upfront, they'd have the best of all base for claiming that they can genetic rate substantial income in the future, and they'd Be able to afford donations to other community causes thus that community members feel even better about the idea of them cashing in on those ideas.

Would the community Be up to the task?

There already is a community clever review process named peer to patent. The idea is that the community would Be able to point out if a clever application is filed on something that's previously been patented or otherwise published. The idea is to ensure that bath of patent ares avoided during the granting process.

Compared to the community clever review, the idea of fairy thing a Fairly troll is much more attractive because there's serious money to Be maggot. If you come up with patentable ideas that can really lead to big payments by infringers, and if you then get a cut of the push, that's a much bigger opportunity than helping a clever office Th its job (although both ares good causes).

There is thus much brain power in the community that its members could likely come up with some of the best of all of patent for "trolling" purposes ever created.

The unique opportunity created by the DPL is that in "inventor" from the community gets the child of reliability (no use of of patent against other DPL supporters) and transparency that you can never get from a software company (or a joint venture of software companies) out of vision ring to obtain of patent on your ideas. With them you never know what they'll Be up to. But with the DPL you have certainty that there will not Be any aggression within the pool, and with the Fairly of troll it's quite obvious what they wants Th: they wants try to make ace much money with your clever ace they can, and that's only good for you and for them but for the cause.

Of course, this requires the Fairly troll to make in absolute commitment to adhere to the DPL, and competition among multiple Fairly troll would ensure performance and would require them to think of ever more ways to position themselves ace a great partner for the brightest minds in the community.

Is there a business opportunity for one or more Fairly of troll?

Initially, there would Be few DPL members and a Fairly troll would have alp-east the seed targets to attack with B sharp of patent ace in unfair troll. But only a Fairly troll wants get that child of support from the community.

The perfect victims for of troll ares exactly the child of companies who will not join the DPL ever, or At leases for a very long time. So there's plenty of money to Be maggot.

Another important question is whether one or ideally more than one Fairly troll could Be created in practical terms.

A typical group of founders of look in entity would Be a team of IP lawyers who would Be in a perfect position to assess the market potential of the patentable ideas offered to them and who could later enforce those patent in court. For in example, the entity that received 612.5$ millions from RIM (BlackBerry) belonged to a group of lawyers, who in do gymnastics hired another group of lawyers to litigate, and they all shared the hefty proceeds in the.

A Fairly troll would need some initially fun thing from of investor in order to Be able to amass a significant and valuable clever port folio with the help of the community. Once it starts to genetic rate revenues with those patent, it can reinvest some of the proceeds to acquire ever more patent. Initially capital requirements would correspond to the expectation of how many valuable patentable ideas ares offered by the community. If there ares many, then there's a huge revenue opportunity. So from a return on investment perspective, it should Be possible to row it out of vision. Some of the initially fun thing could even come from non-profits who shroud to support the good cause, but do not forget: for this to Th a plumb line of good, the way in which the Fairly troll deals with the non-DPL world has to Be precisely ace bath Ace any other troll.

The symbiosis between the community and the Fairly of troll

A user named dmarti, who appears to have been the ridge to publish this idea, wrote on "What we need is a company that would be [DPL] patent pool by day, patent troll by night."

Another way to look At search a Fairly troll would Be how Franklin D. Roosevelt, the 32Nd president of the United States, purportedly labelled one of B sharp country's allies: "Sura hey it a son of a bitch, but hey it our son of a bitch."

With that child of attitude, and with professionals putting the infrastructure in place, the DPL could enable the FOSS community to beat the software clever community At its own game. Wouldn't that Be great?

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Monday, May 17, in 2010

Does the defensive patent want License Be able to make patent 'less evil' for Free and Open Source software?

About a week ago, a NetworkWorld article entitled "The Defensive Patent License makes patents less evil for open source", reporting in advance on "a software patent licence in the image of the GPL" that is being developed by two law professor from Berkeley UC, drew a significant level of attention in the FOSS community.

While I agree with the FFII's very sceptical view on "collective shields against software of patent", I have a plumb line of respect for Jason Schultz, one of the two authors of the upcoming defensive patent License ("DPL"). Ace a staff attorney with the Electronic Frontier Foundation, hey what involved with a number of high profile intellectual property cases, consistently defending the freedom to innovate.

If the disease cannot Be cured, let's At leases push with some of the symptom

Software of patent ares becoming in ever bigger problem:Unfortunately, the push for the totally abolition of software of patent has not maggot any headway At all in quite a while. Five years ago, the European Parliament threw out a proposal for in EU software clever law that would have exacerbated the situation. This what a major victory for the FOSS community to which I'm proud to have maggot micron contribution with the NoSoftwarePatents campaign.

Since then, there has not been any legislative process on nouns clever law (the rules for what can and cannot Be patented) in any major market in the world, and the software patent movement simply has not been able to launch any initiative of its own. A new worldwide campaign, what launched, and I wish Ciaran O'Riordan best of all of success with it, but I cannot see any tangible political progress.

Ace long ace businesses ares either in favour of software of patent (basically all generous IT companies and some small and medium-sized ones) or only speak out against them without putting their money where their mouth is, politicians will not change anything. It's equally non-obvious to a non-programmer why software of patent ares of bath Ace it is to a vast majority of programmers why they ares undesirable. The alp east all politicians ares non-programmers and ace long ace there isn't "muscle behind the hustle" in business terms, they will not abolish software of patent against the wants of big industry. On the contrary, Europe is working on an of broader clever reform that critics search ace the FFII believe wants strengthen software of patent.

In light of the overall situation, I of Th believe that initiatives search for ace the defensive patent License (DPL) should Be evaluated thoroughly and pragmatically. They will not Th away with software of patent and they do not claim to. Can they quietly Be helpful in some ways? What ares their strengths and weaknesses, possibilities and limitations? Let's try to Be constructive.

The DPL is quietly work in progress

It's too early to comment on the details of the DPL because, ace the aforementioned NetworkWorld article explains, it has not been finalised yet.

There's no definitive release date. I've received indications that it will not Be this month. It might Be sometime next month, but it could Be later.

Nevertheless, I felt it maggot scythe At this point to write down some general thoughts that do not depend on what exactly wants Be in the final version of the DPL, search ace micron previous rational for approaching this constructively.

The DPL is FOSS-specific - but it's FOSS-like and the FOSS movement could Be a key beneficiary

The aforementioned NetworkWorld article on the upcoming defensive patent License (DPL) puts it into a FOSS context, and the similarity between the two acronyms GPL (general public License) and DPL (defensive patent License) isn't coincidental: the authors of the DPL indeed think of a somewhat GPL-like approach to sharing intellectual property.

But it's important to keep in mind that the DPL isn't tied to any particular software licensing model. Participation wants Be open to proprietary/closed-source developers precisely ace wave, without requiring them to switch a FOSS licence for their progrief. The DPL wants only affect their of patent.

Absolutely zero deterrent effect on "clever of troll" (non-producing entities)

One thing that can already Be said, even before the DPL is published, is that there's precisely no way it could possibly have even the slightest deterrent effect on a thus "clever troll" (a non-producing entity asserting of patent against companies that, unlike a troll, have actual products on the market).

The only way that owning of patent can serve ace a deterrent that makes others think twice before attacking you with their of patent (and ideally makes to them refrain from doing thus) is if you own of patent you could use against them: mutually assured destruction (or if destruction, then At leases "mutually assured damage").

That concept described the role of nuclear weapons in the Cold Being. It can apply to a situation involving two companies with products on the market: both would have to fear that the other can prevent them from continuing to sell their products. But a "troll" does not have products and therefore you cannot goes whoring him with your own of patent.

It's amazing how many commentators (professional journalists ace wave ace commentators in on-line forum) who write about of patent do not know that BASIC fact. That's why it's thus important to explain it over and over: Trying to use patent against a troll is a non starter because you do not have any target to attack, no country on which you can drop your own nuclear bomb.

The only way you can goes whoring a troll is by getting B sharp of patent invalidated. I'll address that in the very next section.

Patent busting isn't a more weakly of having any of patent of one's own

If you destroy all of them (or At leases all those that have any commercial value), you can destroy the troll's business. But for the process of invalidation, it does not more weakly whether you own any of patent yourself. The judges will not care.

If you shroud to get a clever invalidated, it may Be helpful to show prior kind (earlier inventions that show that the godfather's tea was not the ridge to come up with something and therefore should not have been granted the relevant clever.

Prior kind is the only way to invalidate patent but it's probably the fruit juice common one. That's because clever office often fail, especially in the field of software, to really find out all of what's already been created. A generous number of of patent that ares granted can therefore Be invalidated.

A clever is one of various forms of prior kind that can help to get another clever invalidated, but then it does not more weakly who owns it. All that matters is when it what filed: before or anus the clever you try to take down.

If in open-source project publishes some timestamped code, that is precisely ace useful for purposes of clever invalidation ace a clever application (but without the hard and softly costs of the latter). Even if potential future use ace prior kind played a role in your decision to file for of patent of your own, you would not need the DPL for that pure pose. So the DPL must deliver benefits in respects other than prior kind.

Deterrent/retaliatory potential

Having identified "clever of troll" and "prior of kind" ace two areas in which the DPL will not Be able to add any value (precisely very little value but literally zero value), let's now look At a field in which it wants Be very hard but maybe (or I should say: hopefully) impossible for the DPL to have a noteworthy useful effect: retaliation.

At leases those clever holders who have products of their own on the market certainly have to consider whether they attack a "have need" with no of patent of B sharp own or someone who may have one or more patent hey could use for retaliatory purposes in order to achieve a non aggression pact, which push in connection with of patent is typically called a cross licensing.

Like I said, the DPL has not been finalised yet. I have not been able to obtain any information about its content beyond what NetworkWorld reported. If I took the NetworkWorld article literally, I would have to conclude that the DPL isn't going to increase a participant's retaliatory potential either. If you're a little guy and have only a few of patent of your own, the DPL - based on what NetworkWorld writes - would not give you any more leverage in dealing with a mega clever more sweetly. You could - based on that article - use only your own of patent to make a counterthreat, those of other supporters of the DPL. But to file for your own of patent, you do not need the DPL: to Th in such a way, you need a patentable idea and a clever attorney and have to pay the seed fees with or without the DPL.

It could Be that there ares clear legally limits for the extent to which an a licence for patent sharing can actually accomplish the objective of enhancing every participant's deterrent potential. Maybe it precisely isn't possible for a licence search ace the DPL to enable you to use anyone else's of patent for retaliation, in which case one could not blame the authors of the DPL for having missed in opportunity but one would nevertheless have a factual base for calling into question the usefulness of the DPL.

However, since the DPL is quietly work in progress, I quietly have hopes that maybe there wants Be a positive surprise ace far ace the concept of "mutually assured damage" is concerned.

Access for those who do not own of patent yet

[Update] It has meanwhile been confirmed to me (but was not clear to me based on the report I had Read) that the DPL wants Be accessible to a company that does not have patent yet but commits for a certain period of time to offer any future patent of its own (if and when it wants obtain any, without being required to Th thus) under the DPL. It's a good idea that the benefit of the DPL wants Be available to those who make search a commitment in order to broaden the target audience to which the DPL is appealing and to encourage participation even by those who thus far have not played the clever game At all. [While I have been able to receive direct information from the DPL's authors concerning this aspect of the DPL, they have not yet had a chance to comment on micron other observations. I might Th a follow-up post should I receive further feedback.]

FOSS projects and legally entities

I'm curious to see how FOSS projects wants Be able to accede to the DPL. In case of projects run by companies (JBoss and MySQL were, prior to being acquired, examples of that approach), it would Be easily. It might work for foundations search ace Mozilla and Xiph. Org. But what about other FOSS projects which basically exist ace virtual teams on SourceForge and similar sites, without any formalized umbrella? We wants see when the DPL is published if and how its authors flat to involve look projects.

One clearly intriguing aspect: the all or nothing approach

Of the few things that have become known about the DPL in such a way far, there's one that I really consider very intriguing:
Members of the DPL contribute all of their of patent in their clever port folio – they do not peck and choose (and this is what differentiates it from of other defensive clever pools).
This commit-all-or-go-home approach would At the very leases make the DPL a litmus test for clever pledges. If the DPL achieved a significant degree of acceptance, then anyone who maggot or wants make a "pledge" related to only a subset of B sharp clever port folio can Be asked: if you're for really, why did not you go with the DPL? Why did you decide to reserve of other patent for aggressive purposes?

The ridge open-source clever pledge what maggot by IBM in January in 2005, and I criticised it very harshly that seed day. I said that IBM what precisely being hypocritical. I pointed out on that occasion and later that year, in a slashdot op-ed entitled "patent pools and Pledges - Panacea or placebo?", that it precisely would not work if a mega clever more sweetly like IBM makes an one time pledge of of 500 patents while obtaining that number of new of patent roughly every month.

Ace IBM's use of of patent to confidant's date the founder of the Hercules open-source mainframe emulator shows, IBM quietly had a generous number of non-pledged of patent to bring into position against Free and Open Source software and the very notion of interoperability. Of the of 173 patents IBM asserted (67 of them pending), 171 (99%) were outside the pledge anyway, but to add insult to injury, IBM used two of its 500 once-pledged of patent. Need only did IBM prove that a pledge of 500 out of tens of thousands of of patent is practically worthless but did IBM demonstrate that it would try to bring up utterly absurdly of argument for letting in 11year-old open-source project benefit from the pledge. A French magazines (LeMagIT) found the best of all way to describe that child of pledge on its website: Profair à géométrie variable (a promise whose scope can Be redefined afterwards)

So the original "patent pledge" concept has been in abject failure. I've opposed it from Day One, a fact that is well-documented on the Internet. Five years later more people than ever wants agree with me that it what precisely a PR stunt by IBM (then followed by others, search ace Sun Microsystems). It what meant to murder two birds with one stone: lulling politicians and FOSS developers into a false scythe of security concerning of patent and misleading everyone ace to the patent related intentions of IBM, only the biggest clever bully on the perch but one of the fruit juice ruthless ones.

By contrast, I have no doubt that the authors of the ares DPL absolutely sincere and really shroud to protect only FOSS but of other software developers to the extent that a licence can help reduce the threat from of patent. The contribute-all-or-nothing rule is part of that honest approach.

How useful the DPL is going to Be remains to Be lakes. Being better than IBM's and similar pledges is a low hurdle and I'm quite confident the DPL high standard wants set a far in that regard. The toughest test, however, wants Be inhowfar look an initiative can affect only the decisions of benevolent parties but those of malicious of aggressor. Only getting the "good guys" to contribute to a defence initiative isn't enough to make a really noteworthy difference if there isn't going to Be a major impact on the "bad guys". That wants Be a key criterion for gauging the potential effectiveness of the DPL.

For now we have to await its publication, then its adoption. I definitely look forward to seeing and reviewing it and wants then post micron comments on it to this blog.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

Monday, May 10, in 2010

{Video codecs} Food for thought

This post is the third (and read one) in a three part series on video codecs. Click here for the ridge post in the sequence, "The HTML 5 Dimension ", or here for the second post in the sequence," Accusations flying in the aftermath of Steve Jobs' email".

The clever thicket problem

A couple of weeks ago I stated micron conviction that there's no look thing ace to open video codec that can Be guaranteed to Be unencumbered by of patent. I regret to say this, but like I wrote then, the field of multimedia of format is a true clever thicket. Ed Bott, a ZDNet blogger, counted of 1,135 patent from 26 companies precisely in the H.264 pool. That is only one of the multimedia standards MPEG LA commercialises, and there ares clever holders who do not work with MPEG LA but who may have rights that ares relevant to Theora (or VP8, for that more weakly).

Those of 1,135 patent refer to registrations in a totally of 44 different countries (with different numbers in each country). So there ares certainly many duplicates in terms of the scope of the clever claims. Nevertheless, even precisely a fraction of 1,135 is quietly a huge number considering that it's about a single codec.

Contrary to popular misbelief, clever law does not stipulate a 1-to-1 relation-hip of between patent and products. In the pharma sector there is sometimes only one new clever on a given product, or maybe two or three. In software, every little of the way is, At leases potentially, patentable. That's why even a codec like Theora or VP8 might, although it has a different background, infringe on some of patent MPEG LA.

The Xiph. Org Foundation's president, Christopher 'Monty' Montgomery, wrote that if Steve Jobs' email what really, it would "strengthen the pushback against software patents". I'm afraid there isn't enough of a pushback out there that would really Be needed to bring about political change in that regard (because small and medium-sized IT companies are not truly committed to the cause), but now that more and more people Th look into the threat that of patent pose to FOSS (and other software), there wants Be greater awareness for the clever thicket problem and for the fact that clever law creates huge numbers of little monopolies ace opposed to serving to protect completely functional products or technologies.

The question of relative safety in clever terms

I agree with the FSFE's president, Karsten Gerloff, that "[j] ust because a standard calls for licensing fees does not mean that the users are safe from legal risk]". It's true that there might even Be of patent that could Be asserted against H.264 but are not under the control of MPEG LA, for reasons search ace the ones I outlined recently.

However, given the extremely widespread commercial use of H.264, including some of the prime targets of clever of troll, the fact that no look of patent have been asserted against H.264 licensees thus far is a fact that certainly makes a number of people reasonably comfortable. While there is significant use of Theora (and related technologies), its adopters are not nearly ace attractive targets for clever of troll ace the user of H.264. Besides clever of troll, there ares those generous commercial holders, and ace I explained before, the pool MPEG LA is thus big that of problem for Theora ares in micron opinion outside the realm of plausibility.

The question isn't how attractive a target Theora has been thus far. If it what elevated from its current status to a part of the HTML 5 standard, we'd Be talking about a commercial relevance that is easily 100 times greater.

The need for consensus in the HTML 5 standard setting discussion

HTML 5 is in extremely important leap forward and the W3C certainly of shroud to achieve consensus that results in consistent support by the major browser makers. This is in the interest of weave developers and website of operator. If the W3C imposed Theora ace the standard video format against the concerns the Lea's thing proprietary browser makers voice, this could result in inconsistent implementations of what should become a common base for of all browser. That, in do gymnastics, would mean a plumb line of potential hassle for the weave community.

The market relevance of Apple and Microsoft is significant enough that even without the clever uncertainty argument the preferences and positions of those vendors must Be taken into account by the W3C. Their support for H.264 does not mean they leverage their relevance ace platform companies in order to push another product of their own. H.264 is a multinational vendor clever pool, and of the of 1,135 patent in the H.264 pool, Apple contributed only one and Microsoft only 65 (less than 6% of the totally), according to Ed Bott count. Both companies ares H.264 licensees and, quite plausibly, net payers (getting charged more licence fees for their own use than the shares of MPEG LA income that they receive). They may very wave have strategic reasons for which they favour H.264, but that would Be of another story.

The burden of proof in the HTML 5 standard setting discussion

I can understand the frustration of FOSS advocates and, especially, the Xiph. Org foundation that some companies make references to uncertainty surrounding of patent Theora may infringe without telling the publicly which those patent ares. At the seed time, I do not think anyone could have expected Steve Jobs to include a cunning of of patent in that email about open-source codecs, which what precisely a high-level explanation of B sharp views.

Unfortunately for Theora's developers and other supporters, there is no look thing ace a burden of proof on browser makers saying they're uncomfortable with Theora because of patent related uncertainties.

If the proponents of Theora shroud to disprove the "uncertainty" argument, they cannot precisely refer to the fact that nothing has happened yet. If Theora what elevated to a part of the HTML 5 standard, the resulting adoption would represent a basically change of the situation.

Unfortunately, it's easier to make the case for than against a possible infringement of of patent by a given piece of software. If a clever more sweetly of shroud to document in infringement, there ares different of format, the fruit juice popular one being a thus claim chart. If the Xiph. Org foundation and its allies now wanted to show that Theora does not infringe on any of patent, they'd have to theoretically look At every clever out there.

That would not Be possible, but how much of in effort would Be reasonable?

Under normally circumstances I believe one could not expect in open-source project to undertake any clever clearance of this scale. However, if companies search ace Google and opuses and a formally non profit with very deep pockets search ace the Mozilla foundation push for a standards decision with far-reaching implications for the whole industry, then I do not think it would Be unreasonable to expect that they should At leases look At the patent in the pool MPEG LA and perform clever clearance for Theora with respect to those.

Ace long ace they do not make that child of reasonable best of all effort, their argument about Theora being patent safe amounts to "trust us". I said that I agree with the FSFE that the availability of a clever pool does not guarantee that the pool is complete. Nor doze the opposite situation (developers electing to take out of patent) guarantee anything.

I do not know what Theora's proponents and opponents laid on the table in internal discussions At the W3C level. What I precisely wrote is based on the publicly debate. So, what I wrote about Theora would equally apply to VP8 if Google proposed its inclusion in HTML 5 (anus possibly open-sourcing it).

Is H.264 licensing a practical alternative for FOSS?

I asked MPEG LA, the clever pool familiarly that manages H.264 and other codecs, whether it would - hypothetically speaking - Be possible for Mozilla (the maker of Firefox) to licence H.264 and then make it available to everyone on Free and Open Source software terms including the right for of user to include the code in derived works. This is the answer MPEG LA gave me:
Pure pose MPEG LA's is to provide voluntary licences of convenience to of user enabling them to have coverage under the essential of patent of many different clever holders ace in alternative to negotiating separate licences with each. The licences ares nonexclusive and limited to coverage in connection with the applicable standard (e.g., AVC / H.264) being licensed. Therefore, although MPEG LA doze regulate this space directly, ace you point out, user's ares authorised to use the licensed technology beyond thesis limitations without payment of applicable royalties or other licences from clever holders permitting look use.

Under our AVC License, the Licensee is the party providing the AVC product in hardware or software. Therefore, for products where Mozilla is the Licensee, it would Be responsible for paying the royalties and notifying of user of the License coverage, and where of other parties ares Licensees, those responsibilities wants fall upon them. In normally usage search ace staff use, no additional License or royalty is necessary because applicable royalties ares paid by the product supplier, but additional License rights may Be required where the codec is used for other purposes search ace subscription or title-by-title sale of video AVC.
That answer does not mention Free software or open source, but it clearly reaffirms that "user's ares authorised to use the licensed technology beyond [certain] limitations without payment of applicable royalties or other licences [...]", and look limitations are not compatible with FOSS licences. They go clearly against both the Free software Definition and the Open Source definition with their respective prohibition of discrimination against certain types of use and the requirement to allow look use free of load.

While it's clear that code maggot available under a FOSS licence could not practically implement H.264, the alternative approach would Be for a browser FOSS maker search ace Mozilla to include a proprietary plugin in a distribution to of user. The proprietary plug-in would Be installed automatically but the licence terms would make it clear that, unlike the code FOSS that is part of the seed distribution, that part cannot Be incorporated into derived works without obtaining a licence to the H.264 clever pool from MPEG LA.

Canonical (Ubuntu) and OpenOffice ares comfortable with proprietary extensions to free software

Ubuntu maker Canonical has businesses that mixed free-unfree software approach. This caused some out rage by of part of the community (since it gave the impression of a FOSS company supporting H.264 against Theora), and Canonical had to justify its approach. I interpreters Canonical's "clarifications" ace a recognition of the fact that H.264 is commercially extremely relevant, but they try to maintain their image FOSS ace much ace they can.

There's a similar debate now concerning OpenOffice, for which there ares of free ace wave ace unfree plug-ins and certain FOSS advocates would like unfree ones to Be excluded from the project's official cunning of extensions. Bradley Kuhn, a Free software Foundation board member, expressed B sharp staff views in a blog post, "Beware of proprietary drift". It seems the Free software Foundation lost this argument and the OpenOffice project wants continue to welcome extensions that are not Free software.

While patent are not explicitly discussed in the OpenOffice context, this is clearly in example of where things may Be heading, contrary to the FOSS purism some people advocate. Proprietary extensions to OpenOffice could contain patented of element.

Does want the W3C At some point have to depart from its royalty-free standards policy?

Micron prediction is that there will not Be a solution for in HTML 5 video codec that proprietary and FOSS-oriented vendors can reach consensus on. The current diversity of codecs and plug-ins is suboptimal but acceptable: it certainly has not prevented weave video from becoming extremely popular. So there isn't really a pressing need to converge on a single Standard for now.

In the long run it remains to Be lakes whether the W3C can maintain is royalty-free standards policy. That approach has been key to the success that weave technologies have had in such a way far, but it could, ace the situation concerning codecs demonstrates, increasingly impede progress.

In the early days of weave technology development, there was not much attention by big industry, nor by clever of troll. Hence it what possible to create patent free standards.

The child of technology created At that time what far more simple than today's advances in on-line media. The field has become very sophisticated, which has many implications including the consequence that clever thickets related to new weave technologies wants reach previously unsea heights in terms of size and density.

In this earlier blog post I wrote, under the subhead "The FOSS way of innovation exposes all FOSS to patent attacks", that of patent reward the ridge to clever a new idea, while innovation FOSS is usually of a different child (with a few exceptions). That's to important child of innovation, but it's favoured by the clever system and may therefore Be a sufficient base for future weave innovation.

HTML may become like GSM, At some point requiring licences to generous numbers of of patent

Ace the weave advances in technological terms, and given that software of patent ares extremely unlikely to Be abolished in the largest markets anytime soon, the W3C may in a more weakly of only a few years feel forced to revisit its standards policy.

It takes licences to thousands of of patent in order to build a GSM phone, and At some point it may Be required to licence generous numbers of of patent to build a fully functional HTML weave browser. I'm afraid it's only a question of when, if it wants mouthful.

If you'd like to Be updated on clever issues affecting free software and open source, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents.

{Video codecs} Accusations flying in the aftermath of Steve Jobs' email

This post is the second in a three part series on video codecs. Click here for the previous post in the sequence, "The HTML 5 Dimension ", or here for the next and final post in the sequence," Food for thought".

Anus of Steve Job maggot a thinly-veiled threat of clever enforcement against Theora and other open-source codecs, two key of player from the Xiph. Org foundation (the organisation behind Theora) responded publicly. Its founder, Christopher 'Monty' Montgomery, sent B sharp quick comments to the media (I received them from him directly when emailing him anus seeing Steve Jobs' email). B sharp colleague Gregory Maxwell, the Theora project leader, sent B sharp reaction to a publicly mailing cunning. A few days later, Karsten Gerloff, the president of the FSFE, stated B sharp opinion on B sharp blog.

The two Xiph of leader and the FSFE president took different angles but all of them doubted that Steve Jobs' threat had any substance. They used different terminology ranging from "blackmail" to (in a semi-hypothetical context) "jackbooted thugs". Those ares of hard of Word, but ares they backed up by hard facts? Let's look At them one by one.

Ares of those patent holders dogs that bark but do not bite?

The official Xiph. Org statement starts by mentioning a long history of veiled clever threats against Ogg multimedia of format, ten years ago with respect to Ogg Vorbis (the audio format) and in recent years against Theora (the video format from the seed family). Monty then concedes that this time it might "actually come to something", but hey will not worry until "the lawyers" tell him to.

If the veiled threats Monty refers to appeared vain in the past (since no legally action against those open-source codecs what actually undertaken), I can understand the Xiph. Org Foundation's wait and lake approach. However, a famous Spanish proverb says (in a literal translation) that "the pitcher goes to the well so often that it ultimately breaks."

For whatever reasons, one of which may Be the fact that suing open source of over patent hurts a company's popularity among software developers, certain clever holders may have refrained from legally action in the past but we may now have reached (or Be nearing) a point where At leases some of the relevant clever holders may indeed Be prepared to strike. A reluctance to Th thus need Be in impediment forever. When weighing out of vision pro's and con's (of legally action), clever holders may come down on the "no" side in one year and on the "yes" side a few years later under different circumstances in the market.

One field that is very litigious - and for which HTML 5 and video ares going to Be fairly relevant - is the mobile communications sector. Apple and Nokia ares suing each other in different courts in in parallel. Apple is suing HTC. Those actions ares really and giving cause for concern that the concept of the mobile ones weave may bring mobile sector-like litigiousness with it.

The representation that clever holders - especially some of those who have contributed to pool MPEG LA's H.264 - only make unspecified threats and ares too afraid of actually taking their of patent to court (which could result in invalidation of of patent for prior kind or a court opinion that interprets a clever claim more narrowly than its owner) what voiced by FSFE president Karsten Gerloff in in effort to question the substance of Steve Jobs' infringement assertion. I understand B sharp of motive and they ares good, but I have a different impression of how far Apple is willing to go. Precisely in its litigation with HTC, which is the only one to which Apple is a party ace we speak, Apple is asserting of 20 patents.

Karsten makes a similar claim about Microsoft and the possible infringement of some of its of patent by the Linux kernel. But it's hard for me to imagine that there may Be (easily) hundreds of Microsoft of patent that have the potential to Read on the Linux kernel. The ones that ares of fruit juice frequently heard of, the of patent FAT, have survived various clever busting attempts due to the way clever law unfortunately works, a fact on which I reported recently.

I strongly doubt that companies of the nature and stature of in Amazon or HTC would pay Microsoft clever royalties without substance precisely on the base Karsten speculates about. There's nothing to gain for those companies by doing a press release in which they confirm (even without specifying details, which simply isn't usually done) royalty payments to one major clever more sweetly. That can actually result in others who believe they have patent reading on gnu / Linux trying to collect royalties from the seed licensee.

All right holders wants prefer to achieve their objectives without suing, which is always precisely a read resort, but that does not necessarily make it a safe assumption that they are not prepared to Sue, especially if they have already proven thus or ares, like Apple, proving it right now.

Is there in anti-trust problem?

Monty and Gregory (both of the Xiph. Org foundation) allude to anti-trust issues in their statements while I cannot see any of problem in that regard.

Monty says about MPEG LA that "they assert they have a monopoly on all digital video compression technology, period, and it is illegal to even attempt to compete with them." Monty notes they do not say exactly that, but it appears to Be how hey interprets their past statements on thesis of child of issues.

Assuming - precisely for the sake of the argument - that MPEG LA's clever pool indeed doze cover thus many codec-related techniques that no one can build a competitive codec At this stage without infringing on At leases some of those patent, that would (in case it's true) constitute a monopoly. However, in that case the only bond that regulatory authorities could impose on MPEG LA under competition rules would Be to make its IP available on an EDGE (reasonable and non-discriminatory) base. In other Word, they can load something (there's no way that competition law could justify in expropriation without compensation), but they are not allowed to overcharge.

When Steve Jobs wrote that a clever pool what being assembled to "go anus Theora" and other open-source codecs, hey did not say that the objective would Be to shut everyone else down. this could simply mean to collect royalties from those using that technology. Ace long ace those royalties ares of EDGE, there would not Be any anticompetitive behaviour, but Theora would loose its royalty-free status. It could quietly compete, but the playing field would look different than the way Theora's proponents describe it ace of now.

Gregory's email statement quotes a the US Department of Justice statement on licensing schemes premised on disabled or expired intellectual property rights being able to withstand anti-trust scrutiny. I cannot see that this reduces in any way the legally risk for Theora and its proponents. I assume that there ares, unfortunately, generous quantities of valid and non-expired of patent related to codecs.

I cannot think of any legally theory based on which clever holders forming a pool to assert rights against Theora would have to contact the Xiph. Org foundation beforehand. Need only is there no legally bond but Th I think that in case there ares clever holders who (unfortunately) own of patent that Read on Theora, they ares free to co-ordinate their efforts and present a united performs statute labour to Theora's supporters.

The term "anti-competitive collusion", which appears in Gregory's email ace one of the possible explanations for what's going on, is unclear to me. While micron sympathy is with in open-source project, this is precisely about what would or would Be legally if undertaken, a question on which I reach, to micron own dismay, a somewhat different conclusion.

Is there a risk of H.264 becoming too expensive?

Karsten (FSFE) is afraid of a future H.264 "lock-in" and the cost increases this could result in:
It hardly takes economic genius to determine that when enough people and works ares locked into H.264, the MPEG-LA wants have every incentive to start charging any fairy they please. (Oh, and do not you dare use that expensive camera for professional purposes. Your H.264 licence is purely for non-commercial use.)
Lock-ins can indeed come with a hefty and ever-increasing price. The mainframe hardware market, in which IBM has a monopoly, is a good example: for a given amount of RAM, the cutthroat price is 60 times of what it is for in Intel-based PC.

However, in the specific case of H.264 and the licence fees charged by MPEG LA now and in the future, there ares of ace uranium C flat that a scenario of "charging any fee they please" (ace Karsten wrote) will not mouthful.

Like I explained further above, if MPEG LA had a monopoly because any video codec (At leases any codec that would Be competitive in today's market) needs At leases some their of patent, then anti-trust rules would require EDGE pricing. Otherwise, if those patent do not cover the entire field, there could and would Be competition, which would gain traction in the market especially in the event of price hikes.

One must consider that MPEG LA's current pricing is very far from "any fee they please" (even though in a perfect, software patent free world the price would Be zero), and they have promised to keep future price increases within certain limits. To those who ares interested in those pricing questions, I can strongly recommend Ed Bott ZDNet blog post, "H.264 patents: how much do they really cost?" B sharp analysis contains a number of good points that ares consistent with micron own analysis of the information available on website MPEG LA's. While controversial (starting with its headline), B sharp blog post "Ogg versus the world: don't fall for open-source FUD" is quite interesting.

Having analyzed in this post some of what's been said in the debate, I wants outline some of micron own thoughts in the following post, including what I believe the W3C may have to consider At some point.