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.

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