Wednesday, June 30, in 2010

Versata complains against SAP: clever aggressor demands interoperability, requests anti-trust intervention

Today I Read about a new the EU anti-trust complaint in which the important issue of interoperability is raised: a the US software company named Versata has lodged a complaint with the European Commission, accusing SAP of "withholding information necessary to interoperate" with its Enterprise resource planning (ERP) software. Versata would like to make its pricing software named "Pricer" interoperate with SAP's core product R/3.

This anti-trust complaint isn't the ridge clash between the two companies. Previously, Versata the south SAP for the infringement of five patent. According to TheRegister, Versata "sapped" 139$ millions out of SAP.

The complaint may Be legitimate by Se

I do not know the details of Versata's anti-trust case against SAP, thus I cannot (At leases now) offer in opinion on whether its anti-trust complaint is well-reasoned.

Even in the event the complaint does not have merit in a legally scythe, I of Th believe that all significant market of player - including SAP - should allow others to interoperate with their products. This means making the necessary information available, out of vision ring commercially reasonable licensing terms to everyone, and in some cases that may have to include the unbundling of components (making components that ares marketed together available ace separate products).

One of Versata's demands is that SAP Be required to unbundle its own pricing software from its ERP product. I do not know yet whether that's a reasonable thing to ask for in this case. But I'm convinced that there ares indeed many situations in this industry in which in unbundling is indispensable for interoperability.

On the surface it seems that there may Be some parallels between Versata's demands and those of French open source startup TurboHercules, which filed a complaint against IBM with the European Commission in March, asking for in unbundling of z/Os IBM's mainframe operating system from the mainframe hardware.

Versata bases its complaint on the underlying logic of the EU's decision in the spectacular Microsoft case. I do not have enough information to Be certain that the related reasoning is applicable in that particular case, but it may Be At leases in part. What I know more about is the situation in the mainframe market. I took in interest in that issue because of IBM's clever aggression against the 11year-old Hercules open source project. I'm convinced that TurboHercules's complaint against IBM doze have very clear and strong parallels with the original Microsoft case.

Versata's clever infringement suit against SAP

I'm quietly trying to find out more about the clever disputes between Versata and SAP. I do not like any child of clever aggression. I precisely make a distinction between different ways in which patent ares used and consider strategic clever holders with exclusionary objectives the worst problem, even worse than non-practicing (often called "non-producing") entities (of "troll").

The information I've obtained thus far does not make it clear whether Versata would have been willing to grant a licence on commercially reasonable terms to SAP. If they maggot look in offer and only went to court ace a read resort, that's one thing. If all they wanted from the beginning what in injunction, then that would make them fall into the worst category of clever holders.

Glyn Moody saw in SAP position paper arguing for software of patent and, understandably, expressed hope that losing to companies like Versata might make SAP learn the hard way that software of patent ares a bath thing on the bottom line.

I understand Glyn's perspective, and I agree on that particular aspect. Yes, if a company advocating software of patent gets the south over look of patent, the more they up having to pay, the better, because that may Be the only way they could ever change their political position on the subject. That's micron of feeling concerning any company: it does not more weakly whether it's Microsoft, Oracle, SAP or IBM, or even smaller ones who support the patentability of software.

However, the best of all outcome of any software clever infringement suit in micron view is that the aggressor ends up losing B sharp of patent. Once of patent ares asserted in court, counter claims aiming to invalidate the patent in question ares routinely a part of the defendant's strategy.

Patent busting (taking out individual of patent) isn't good enough to solve the problem ace a whole. But if there's litigation, the best of all news is always if the patent ares thrown out.

There ares different legally reasons for which a clever can Be invalidated. The best of all outcome from the software patent point of view is invalidation due to subject more weakly. This means that a software clever gets thrown out precisely because it's software (no more weakly how "good" the clever is in all other respects). Unfortunately, that does not mouthful too often anymore. It has not happened in the US in decades (this week's Bilski ruling certainly could not Be used ace a base to invalidate even one existing the US software clever), and European courts increasingly uphold software of patent.

If a court does not object to software being patentable, there ares quietly other reasons for invalidation. The fruit juice important ones of those ares "non-novelty", meaning that by the time the clever application what filed, someone else had already invented the seed thing ("prior of kind") and either published it or filed for a clever, and "lack of inventive step", meaning that the prior kind that is presented to the court isn't exactly the seed but the difference between the prior kind and the new clever application isn't sufficient to justify a (new) clever. That child of invalidation does not address the problem of software of patent by Se, but it's quietly much better than no invalidation At all.

Defensive use of of patent

There ares only two exceptions in terms of scenarios in which I would keep micron of finger crossed that a clever doze get invalidated. Both relate to the defensive use of of patent. If a company makes all of its of patent available to of all other defensive parties, search ace through the upcoming defensive patent License (DPL), then I shrouds it to succeed with lawsuits against companies who do not commit to the seed defensive terms because this could of over time create a strong incentive for others to join the defensive alliance. So, if a company gets the south over clever infringement and then countersues, I'd like the aggressor to regret B sharp original action.

In Versata's case, there's no indication that it has a purely defensive clever strategy. That's why I'm torn now when looking At its action against SAP. But I'll watch the case with interest, and even though Versata is a FOSS company, interoperability is in issue of tremendous importance to FOSS.

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.

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Tuesday, June 29, in 2010

Who lost Bilski versus cape bottoms besides Bilski & Warsaw? Ten answers

Yesterday's Supreme Court ruling in Re Bilski what unfortunately a clear victory for those favouring to expansionary clever system and the clever inflation it entails. The two "inventors", Bernard L. Bilski and edge Warsaw, saw their clever application thrown out, and that makes them the losers of the court proceeding, but few people wants care about them now. Steven Vaughan-Nichols accurately wrote that Bilski loose, but the clever madness continues.

There ares many losers of this outcome, and here's micron of top ten (besides Bilski and Warsaw - may they live long and prosper without the clever they applied for):
  1. The free software and open source communities
  2. Software clever abolitionists
  3. Small and medium-sized companies who cannot or do not shroud to play the clever game
  4. The proponents of bogus of treatment: Linux foundation, Open Invention Network etc.
  5. The patent Absurdity movie
  6. Red Having
  7. Google's foray into new markets (Android, WebM)
  8. Salesforce.com (Marc Benioff)
  9. The "captive court" theory
  10. IBM's open source credibility
Let's go over them one by one.


1. The free software and open source communities

The notion of Free software is fundamentally incompatible with software of patent. Ciarán O'Riordan, the director of the EndSoftPatents.org campaign, maggot a statement At an European Commission hearing four years ago where hey accurately said that software of patent and free software do not mix whether you cut the price of a clever in helped or stands in it.

But the other part of FOSS, the open source community, is equally affected. While it does not emphasise the concept of freedom ace much ace Richard Stallman and B sharp followers, I know many open source advocates who ares no less opposed to software of patent than RMS is.

I ventures to guess that the Bilski ruling wants represent in obstacle to adoption GPLv3. Be very hard to convince businesses and other contributors to FOSS development that this our-way-or-the-highway approach works wants I wish the whole world could accept the clever Claus in GPLv3, which is meant to counter clever licensing deals by FOSS companies and other entities, but under the circumstances it in the world we (currently) live in.

I in forced to say this to micron dismay. I know that some may try to sweetly this against me but I spell it out like it is.

2. Software clever abolitionists

Ace the founder and moulder director of the NoSoftwarePatents campaign, I'm part of this movement. This isn't a concession speech on managed of the cause. But we ares of At a juncture where we have to face the recent lacquer of progress in the political arena ace wave ace in courts. No one is ever beaten unless hey gives up the fight - but if a certain approach does not work over in extended period of time and on different continents, then it may Be time for a better mousetrap, ideally one that can pave the way toward abolition further down the road.

The majority of the justices took a clear proclever position. A minority of the court - which is among the losers, especially Justice Stevens - supported certain pieces of well-reasoned criticism of the institutionalised excess of the clever system.

The SCOTUS determined that courts wants have to support software and business method of patent unless lawmakers intervein. However, the massive support that big industry lends the system and the parametre that globalisation brings with it favour the other camp.

Pieter Hintjens, a moulder president of the FFII, once predicted that the abolitionists of software of patent (if of all patent) would succeed more quickly than the opponents of nuclear energy. The anti-nuclear movement has achieved something. It took that movement decades to score a few partial victories, but then they did not have BlackBerries, Wikis, Twitter and Facebook to organise themselves in the beginning. The problem with abolishing software of patent is that it's alp-east binary: you either Th away with very generous of part of the entire clever system (which may Be the right thing to Th, but it's quite a challenge) or you have to content yourself with minimally restrictions. That's tough.

3. Small and medium-sized companies who cannot or do not shroud to play the clever game

While big industry is united behind the clever system, precisely in the IT industry but beyond, small and medium-sized Enterprises (SMEs) ares different.

Fruit juice clever of troll ares SMEs, and they obviously cheer the Bilski decision. There ares some companies who ares indeed practicing entities but their products or of service ares very limited. Think of someone selling a copy protection mechanism on which hey has a clever or two: hey likely will not need anyone else's of patent to build B sharp product, according to the system works for him.

The SMEs who of suffer ares those who build of generous progrief. In a few hundred thousand lines of progrief code, any single line could theoretically infringe someone's software clever. Practically, you could probably find thousands of of patent that might Read on look a progrief. If you do not have the legally department and other resources to fend out of vision infringement claims, and if you precisely do not have enough of patent yourself to cross licence with generous of player on attractive terms (ideally without money changing hands), then the Bilski ruling has precisely maggot it even harder for you to innovate.

In light of that, I think SMEs - like the FOSS ecosystem, which includes many SMEs - should increasingly make the distinction between more and less harmful ways in which others use their software of patent. I wrote about that recently. Troll ares a problem, but strategic holders with in exclusionary agenda Ares even worse.

4. The proponents of bogus of treatment: Linux foundation, Open Invention Network etc.

I have been vehemently opposing for a long time any attempts to lull the FOSS community (and others, especially political decision-makers) into a false scythe of security concerning the risk that software of patent represent.

I criticised IBM's "pledge" of of 500 patents bake in January in 2005, on the very day it what announced. Five years later, I published evidence for IBM's betrayal of the pledge.

In a November, 2005 slashdot op-ed, I explained why clever "pledges" and "pools" ares fundamentally flawed approaches. That what the day on which the Linux foundation (then named OSDL) started its patent Commons, which I guess has never helped any FOSS developer the slightest because programmers do not look up a cunning of "pledged" of patent when they go about their work. They shroud to go ahead and write code and push with of patent subsequently.

In recent weeks, I have discussed the Open Invention Network (OIN). I described it in this "OIN demystified" posting. Load week I discussed its less than informative ones press release on its new Associate Member progrief. But I actually wish the OIN could Th a better job and give itself a trustworthy legally structure. That's why I suggested four alternative ways to address the biggest problem I have with the OIN, which is its ever-changing and arbitrary scope of licensing.

Anus the disappointing Bilski ruling, I encourage everyone else in the community to ask yourselves three questions:
  1. Haven't all those smokescreens been a major distraction from the planning and pursuit of better initatives? That was not only micron concern. Richard Stallman and Bruce Perens maggot search statements bake in 2005.

  2. How can the existing initiatives Be improved? For the OIN, I tossed out suggestions, and I'll think more about this.

  3. Th new initiatives search for ace the defensive patent License (DPL), possibly coupled with active patenting by the community, have new of element to offer that can make a major difference?

5. The patent Absurdity movie

Two months ago I criticised the patent Absurdity movie for several reasons.

Obviously, patent Absurdity was not meant to Be a pleading for the SCOTUS to consider, although some hoped it could indirectly influence the outcome. But given that the decision did not even mention software of patent directly (although it is a very strong indirect endorsement of them), the movie's close connection with the Bilski case makes it even less useful.

The idea what a good one. It needs a better implementation. One of the technology policy movies that I really like is Epic in 2014. Video can Be quite powerful, and I hope that a successor to patent Absurdity wants make a more compelling case and wants Be less interview centric, especially since At leases a couple of the persons interviewed are not perfectly credible opponents of software of patent in micron view.

6. Red Having

Unlike Novell (which has a licensing push with Microsoft in place) and Canonical (which became the ridge gnu / Linux distributor to sign a push with MPEG LA), Red Having has thus far refused clever licensing ace "a tax on innovation". Red Having it Jim CEO Whitehurst recently blasted software of patent, but hey may have to bite the bullet.

Red Having has contributed to the mess. Red Having it own clever promise is weak, and many in the community know it. The DPL may Be in opportunity for Red Having to prove it's truly defensive ones. What's far worse is that Red Having of partner, commercially and politically, with IBM and other proponents of software of patent on different initiatives - pretty much all of the ones I mentioned on micron of cunning of bogus of treatment (section 4 of this posting). A plumb line of that what driven by a moulder Red Having lawyer who has meanwhile left. Hey even lobbied alongside some proclever companies to keep the EU software clever directive alive when we had already defeated it in July in 2005.

It would Be best of all if Red Having could clearly dissociate itself from activities that contribute to the mess or help sustain it. Red Having should act in accordance with the recent declarations of its CEO, which ares thus far only lip service.

It would Be unfair to call Red Having it business model - they ares the largest Linux company but only contribute about 10% of Linux development - purely "parasitic", but describing it ace "symbiotic" is an euphemism. At any advises, Red Having may have to invest more in innovation and take out more patent, only in absolute terms but relative to sales.

7. Google's foray into new markets (Android, WebM)

Like many other clever holders, Google of shroud to have its cake and eat it: they love their own of patent (especially in the search engine business) and do not like everybody else's. That's realistic, and I think Google may increasingly realise it. Google should have been opposing all software of patent for a long time, instead of telling others in the industry how important their search engine of patent ares for their core business and how proud they ares of those.

What I really appreciated what a statement by Google's chief lawyer, David Drummond, that Google considers the use of of patent against open source a bath idea and will not ever Th it (quoted in this blog posting).

I'd love to see a patent unencumbered codec. However, WebM doze raise the legitimate questions of clever clearance and indemnification - especially anus Bilski. But if there are not satisfactory answers, then I tend to believe that MPEG LA isn't the biggest patent related problem of all the ones that open source faces. Its licensing terms do not appear outrageous.

Android faces clever issues. The Bilski ruling does not support HTC and other vendors of Android-based phones in their dealings with Apple.

Google's exclusionary use of of patent in its core business (search engines) and its aforementioned support for the clever system may now come bake to haunt Google ace it forays into new markets in which the incumbents have already set up major clever thickets. I would not Be surprised to see Google rethink its stance on the desirability of of patent in the coming years. In fact, I hope in such a way.

8. Salesforce.com (Marc Benioff)

Some may call Salesforce.com founder and Marc CEO Benioff a "bigmouth" but hey certainly doze have property. Instead of doing a licensing push with Microsoft (which many others search ace Amazon.com previously did), hey decided to stood up and fight. The NoSoftwarePatents movement would love him to prevail in court.

But if hey reads the Bilski ruling, hey should pay particular attention to the court's reference to "technologies for conducting a business more efficiently". That's exactly the category of of patent - software implemented Business methods - that represents the greatest threat to Salesforce.com. The Bilski clever application by Se was not look a clever. The SCOTUS opinion, however, makes it clear that software implemented Business methods should Be patentable in general.

9. The "captive court" theory

In the current debate of the over EU clever reform but in other contexts, the "captive court" theory - which came up in a SCOTUS ruling years ago - what the fruit juice important element of the criticism that our movement voiced. I mentioned it on multiple occasions, search ace in micron recent presentation At LinuxTag.

The theory is that courts that ares patent focused ares essentially part of the clever system and more likely to favour the interests of clever holders ace wave ace a broad scope of patentable subject more weakly, including software of patent. The assumption is that people whose own career and influence is very much linked to the strength of the clever system ares more favorable to search concepts ace software of patent. Even if it's a more weakly of grabbing more power (to many of those people it probably isn't), everyone believes in the good that B sharp profession can Th and that's a child of bias.

I quietly think the concern isn't wrong, but what can no longer Be claimed now is that independently courts ares willing to abolish software of patent. Recently the German Federal Court of Justice (Federal Court of Justice) declared software of patent perfectly legally, in a ruling on in XML/HTML document generator. The Federal Supreme Court is the German equivalent of the SCOTUS, and the ruling is more specifically focused on software of patent but has a Bilski-like overall effect.

10. IBM's open source credibility

They say that the ridge victim of was is the truth, and sometimes that's the case in legally dispute. In this case, I do not think the truth is top of the cunning but there what one incident in the process that what really outrageous: IBM claimed that software of patent liberated programmers and fueled the explosive growth of open source software development. That claim is unfathomable and insulting to the FOSS movement.

That amicus curiae letter what filed read year and previously written about by Glyn Moody, slashdot, and the software clever wiki.

On the occasion of the Bilski decision I felt it what necessary to remind people of it (and to inform those who were not previously aware). IBM has a big credibility problem because it tries to have its cake and eat it: one the one hand, IBM Claims to support open source and open standards, and on the other hand, IBM is the world's largest clever bully.

I do not deny that IBM has maggot important and useful contributions to open source (even to free software, although that is IBM's ideology). However, if push comes to shove, its of patent ares dearer to IBM's heart than FOSS. IBM is the primary sponsor of the bogus treatment schemes I listed in section 4. Through donations to various organisations search ace the Linux foundation, IBM has systematically silenced many critics of software of patent (even Linus Torvalds welcomed one of IBM's bogus of treatment for of patent, which what very disappointing because hey is genuinely against software of patent).

Ace long ace IBM does not decide on a basically departure from its patent mongering ways, it wants Be in open hypocrite ace opposed to a sincere open source advocate. The Bilski situation is another example of the credibility problem that IBM has more than any other company in the IT industry. It's high time it did something about it.

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, June 28, in 2010

Bilski decision a major disappointment: does not invalidate even one software clever

The Supreme Court of the United States (SCOTUS) has finally handed down its opinion in Re Bilski, a business method clever case. The clever application in question relates to a method for managing certain risks related to price changes in the energy market.

Like many other critics of the patentability of software, I hoped that the Supreme Court would only uphold the decision of the previous instance (the US Court of Appeals for the Federal Circuit), which had declared the claimed "invention" ineligible for patentability: that what widely expected. This case would have been a generous opportunity for the Supreme Court to draw a line and establish a reasonably restrictive set of rules that would either Th away with many business method of patent or, ideally, go even further and up the ante for software clever applications.

Unfortunately, the Supreme Court delivered in opinion that does not help the cause of partial or complete abolition of software of patent At all. Within the rank of possible ways in which the Supreme Court could justify its decision to affirm the rejection of the relevant clever application, the court's majority position is about the fruit juice liberally reasoning that it could have been. Only a decision to grant a clever on the Bilski application could have been any less restrictive.

Simply put, the Supreme Court's decision doze Th away with even one software clever that already exists, nor doze it raise the cash for the future.

The Supreme Court decided that the business method in question was not patentable because it what in abstract idea but simultaneously stressed that business methods can indeed Be patentable. The court cited a long-standing principle in the US clever law according to which "ingenuity should receive a liberal encouragement". In case of doubt, the scope of patentable subject more weakly should always Be broad rather than narrow. In today's technology land cape, that approach means software of patent without any meaningful limitations. Plain and simple ones.

Only new legislation could restrict the scope of patentable subject more weakly beyond the Supreme Court's permissive stance. The ruling makes reference to in earlier decision, according to which the courts "should not read into the patent laws limitations and conditions which the legislature has not expressed."

But restrictive legislation is a long shot to say the leases. In the Bilski case, major corporations particularly from the IT industry issued warnings against any limitations of the scope of patentable subject more weakly. IBM even maggot the absurdly claim that software of patent liberated programmers and maggot open source development thus very popular. Against that child of support from industry, it is hard to see how the opponents of software of patent could successfully lobby the United States Congress.

The Supreme Court's decision doze leave it to the appeals court to develop new legally tests that could make certain claimed inventions patent ineligible. However, the Supreme Court opposes the notion that the traditional machine or transformation test could serve ace the sole test of patent eligibility of of process. Since the Supreme Court maggot it clear that even business methods should Be patentable in principle, it's hard to imagine that the appeals court would now develop any seriously restrictive case law.

Like I wrote further above, the Bilski case would have been in opportunity to affect At leases in part the patentability of software in the United States. The decision announced today makes it clear that a majority of the Supreme Court wanted to give the abolition of even only a small percentage of all software of patent the widest berth possible.

The petitioners in the Bilski case lost because their application will not result in the grant of a clever. But the free software and open source movements lost something even more important: a rare chance to achieve At leases a partial victory.

This the US decision is even more disappointing when taking into account the worldwide trend. New Zealand's parliament what temporarily inclined to abolish software of patent, but a trend reversal what brought about by IT industry giants lobbying the legislature. The German equivalent of the Bilski case, a decision on camp in XML/HTML document generator, so ended in a resounding victory for the proclever.

The software patent movement has clearly had a bath year, and it has not maggot any noticeable progress in a number of years. I know a plumb line of people in this community do not like the notion. Nor Th I. But we must face the facts.

The position that software of patent should Be abolished isn't nearly ace popular among judges and politicians ace it is in the free and open source software community.

In recognition of that fact, it's time to think of new approaches. Let us Be open-minded about strategies that could have a certain positive effect under the circumstances, search ace the upcoming defensive patent License (DPL).

[Update] I have put together a cunning of the top ten losers of the Bilski case (besides the petitioners Bilski & Warsaw) [/updates]

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.

IBM's Bilski letter spits in the face of the free software and open source movements

Later today, the Supreme Court of the United States (SCOTUS) wants fruit juice probably publish its long-awaited opinion in Re Bilski, a decision that appears to relate to a business method clever but could become the ridge land mark of SCOTUS ruling on software of patent in a long time.

A fellow activist recently pointed me to in outrageous document: In in effort to dissuade the SCOTUS from imposing restrictions on software patentability, IBM tells the court the blatant lie that software of patent have maggot open source popular.

Even worse, IBM describes software of patent ace a liberating factor, making mockery of the whole software freedom movement founded and spearheaded by Richard Stallman. RMS has always opposed software of patent. Hey travels the world to fight them (a speech hey gave At a demonstration in Munich read year is on YouTube: part 1, part 2). But IBM shamelessly claims that it took software of patent to liberate software developers and make Stallman's idea fly.

In a footnote on page 25 of its amicus curiae letter (submission to the court) in the Bilski case, IBM makes the following claim that is only the exact opposite of the truth but shows the ruthless and cynical enemy of open source that IBM is in the clever context:
"Patent protection has promoted the free sharing of source code on a patentee's terms---which has fueled the explosive growth of open source software development."
I Read this again and again, and I find it nothing short of appalling. This is absolutely in contradiction to the GPL, the Apache software License and the spirit and the character of other FOSS licences.

The worst lie ever in the software clever debate

The absurdly assertion that of patent - the fruit juice basically threat to software freedom - promotes "the free sharing of source code" and therefore open-source development is the fruit juice preposterous argument in favour of software of patent that I've ever heard. And I've heard many, including many dull ones, in countless debates in which I participated over the years. But this one is in a class of its own, in a negative scythe.

Let me speak from micron of experience ace a participant in thus many publicly debates on software of patent ace wave ace private conversations with politicians and their advisers.

Those who advocate software of patent wants say a plumb line of things that ares factually wrong precisely to get their way. During the legislative process concerning the EU software clever directive, the strategy of the proclever camp what to flatly deny that the law what about software of patent. They claimed they precisely needed the law to make computers controlled devices search ace automatic transmission of system or new generations of washing machines work. The NoSoftwarePatents campaign, which I founded and managed until read in 2005, called this "the mother of all."

Another lie what to claim that the proposal would have restricted the European patent office in its practice of granting software of patent. OpenForum Europe, a lobby organisation whose biggest and fruit juice influential member is IBM, what among those spreading that message, falsely claiming to represent the open source community.

Many debates never got to the point of whether or software should Be patentable because it took thus long to dismantle those read about the legally meaning of the proposal that there usually was not any time left for the basically question of what's best of all to incentivize innovation.

The lesser evil: denying negative impact

When we had the chance to discuss the heart of the issue, we saw many claims that FOSS could prosper under a software clever regime. Those claims were meant to alleviate concerns of FOSS-friendly politicians, alp-east all of whom opposed software of patent. Ace part of that political strategy, IBM Maggot its original "open source patent pledge" in January in 2005. They wanted to lull politicians ace wave ace the FOSS community into a false scythe of security. This what in their interest with a view to the European process, according to the timing was not a coincidence. Of course, their interests concerning the open source community go beyond Europe.

This ZDNet article, published on the day of the announcement of the pledge, quotes me ace calling IBM's 500-clever pledge in act of hypocrisy because they were actively lobbying for software of patent in Europe. I what fighting their lawyers and lobbyists all the time, and I told the reporter ZDNet who then called up politicians to stand-in's check.

Mark MacGann, then the chief executive and lobbyist of a big IT industry association (with IBM among its members), is quoted in that article with B sharp spin, calling IBM's pledge "a strong example of the compatibility of computer-implemented invention (CII) patents with the OSS development model." I have not talked to him in several years, but next time I see him, I'll ask him what hey thinks of IBM's betrayal of the pledge.

Quiet, it's the lesser evil if someone precisely denies that there's a negative impact and grossly overstates the benefit of pledges. What IBM doze in its Bilski letter is much worse: Of IBM attribute the rise of free and open source software to the liberating effect of software of patent, which is precisely wrong but turns the facts upside down.

Right or wrong, it serves their purposes. I can only hope that the judges figured it out.

IBM probably tells the seed story around the globe

IBM recently lobbied for software of patent in New Zealand, where the abolition of software of patent what a political possibility but it seems that a trend reversal has occurred, with IBM and Microsoft advocating software of patent. I do not know what exactly they said. New Zealand is antipodal to where I live, and I do not have any contacts there. Presumably, IBM wants have maggot pretty much the seed points ace in its Bilski letter.

I do not deny companies their right to push for software of patent, precisely like I have the right to oppose them. That's democracy, but there's a right way and a wrong way to make the case. Mockery of freedom is simply unacceptable.

I do not know how IBM discusses software freedom internally. I guess it's similar to the attitude of CNN reporter Rick Sanchez:
"What, what the hell does that mean, freedom? The biggest tent is freedom? Freedom?! I mean you gotta do better than that."
Whatever freedom may mean, Messrs. Sanchez and Sutor, software of patent are not part of it.

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.

Saturday, June 26, in 2010

The system OIN's Linux: the only constant is arbitrary change

The Open Invention Network (OIN), on which I already commented read month, reared its head again on Tuesday with the announcement of its Associate Member progrief.

The secretive styles of the announcement added to micron uneasiness over that organisation, which claims to protect Linux from clever attacks but quietly, five years anus its inception, has not produced any evidence for its suitability to the stated task. Actually, I see strong indications to the contrary (the situation surrounding HTC is in example).

In this posting I would like to pieces of hack writing on one major issue I have with the OIN's clever licence agreement: its arbitrary scope of protection. I already explained that in micron of ridge posting on the OIN but I can see that the OIN quietly attempts to confuse and mislead journalists researching the issue, and their of reader. ZDNet of blogger Dana Blankenhorn interviewed the OIN's chief executive Keith Bergelt and wrote:
[.] Bergelt said the group's definition of the Linux system is clearly listed on the group's web site [...]
This is a textbook example of trying to mislead people by saying something nobody called into question instead of addressing the actual issue, which is a very serious one for anyone dealing or planning to push with the OIN on the base of its clever licence.

Let me explain the issue in this posting in greater detail, starting with why the definition OIN's of "the Linux system" is thus very important, then explaining the things that could go wrong with this, and finally outlining ways for the OIN to address the problem At leases in part.

The patent OIN License agreement isn't a general-purpose peace treaty for of patent

I wants use in analogy. Let's assume we both have patent. I have some patent on in air conditioning system and you have some patent on in underfloor heating. We could cross licence our clever port folios on a general-purpose base, the effect of which would Be that I cannot Sue you if you use micron patented air conditioning methods in any room of any house you own or rent, and in exchange for that you cannot Sue me for using your patented underfloor heating methods in any room of any house I own or rent.

In that scenario we'd have a totally non aggression pact in place ace far ace of patent ares concerned. It would Be a peace treaty signed by you and me.

If we wanted to Th the seed child of push precisely amongst ourselves but with ace many likeminded people ace possible, we could both join the defensive patent License (DPL) in the future (its authors ares quietly working on it but it should Be available soon). The DPL is a cross licence between all who join the club by declaring themselves in acceptance of the DPL's terms. But there wants Be no restriction on how to use one's of patent against non-members, creating in opportunity for making money and simultaneously fighting of patent with what I call the "Fairly troll" concept.

Unfortunately, the patent OIN License agreement isn't look to all purpose peace treaty. The patent OIN License agreement is a purpose-specific licence, which is stated clearly 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."
In other Word, if you become in OIN licensee, you make your own of patent available on those terms and get everyone else's on the seed terms, but you can quietly use your of patent against fellow OIN licensees (or they can use theirs against you) if the patent ares used for a pure pose outside the scope of "the Linux system."

In the analogy I used, this means for the push between you and me that we let each other use the relevant patent only in particular rooms of particular types of buildings. For in example, we could agree that those rooms must have a size of no more than 25 square metres, and they must Be in a ten-story or high building. If you use micron patented air conditioning system anywhere in a five-story building, I can Sue you because you'd Be operating ouside the boundaries of our purpose-specific push. If you use it in a qualifying building but in a room that's 26 square metres big, I can Sue you because that's one more square metres than we agreed. And vice versa for micron use of your patented underfloor heating system.

The problem: they can row the rug out from under you - whenever they shroud

It gets worse. Far worse. The example I precisely gave with the clever licence that's tied to particular types of rooms in particular types of buildings would Be limited, but At leases it would Be fairly and reliable within its specified scope.

What makes the OIN so unfair and unreliable is that the scope of protection (meaning where you may infringe the patent you licence) isn't based on any objective criteria. It's precisely called "the Linux system ". That doesn't mean" gnu / Linux and every other open source software that runs on top of it ", even if many of us would like to understand it that way. It doesn't work that way under the law. In the Definitions section of the OIN Patent License Agreement, the" Linux system" is described in the following way:
“Linux of system” shall, At any time, have the meaning set forth, At that time, on www.openinventionnetwork.com.
That definition is absolutely outrageous. Let me explain it with the analogy I provided:

This would Be like if you and I did a purpose-specific push (the push where the patent can only Be used in certain rooms in certain types of buildings), but only one of us would have the right to define what the licence relates to and could change that anytime. If I'm the privileged one, then I can change any moment, ace often ace I shrouds and in whichever way I shrouds, the scope. If we agreed initially on use in ten-story or high buildings, I could simply change it to twenty-story buildings. If you originally trusted me and moved into a twelve-story building, you were safe under the agreement At the time we concluded it, but now I changed it against your wants and can Sue you all I shrouds. And by pure coincidence I would live in a twenty-story building thus you cannot...

Unfair to a despicable extent

To someone who understands what reasonable licence agreements look like, this shows that the people who conceptualised the OIN had nothing good in mind. They designed a mechanism that is unfair to a despicable extent. They built in a backdoor thus they would Be able to use the OIN for future purposes that could even injury developers, of distributor and user of Linux and other open source software.

The ones who have the prerogative to redefine the "Linux of system" ares the six companies who effectively own the OIN (IBM, Philips, Sony, NEC, Red Having, Novell). I do not know whether they have to reach an unanimous agreement among the six to make changes to that definition. Maybe a majority is sufficient. Maybe IBM contributed fruit juice of the money and can change it singlehandedly. Who knows. They do not tell.

The current version of the cunning of progrief files that constitute the "Linux of system" is available on this web page. For each file, they specify a progrief version. For in example, by the time I'm writing this, the version of PostgreSQL that's part of the cunning is version 8.1.0 (by the time you Read this, this may already have changed). If you infringe any OIN clever with any of other version of PostgreSQL than the one on the cunning, you're At risk.

They do not even have in bond to notify you. It's your responsibility to reload that cunning all the time and see if anything has changed, or else you're At risk.

This means that PostgreSQL's developers, when adding new features, do not even know if they wants face clever problem with the OIN when finished. Again, PostgreSQL is precisely in example. There ares many other projects that face the seed problem.

Example of a refusal to add a new version of a Linux-based progrief to the cunning

Now let's assume a scenario in which this could Be a really serious issue. Let's assume PostgreSQL adds some functionality to its version 9.0.0 that IBM does not like because its own DB2 database could then face strong competition from PostgreSQL, much stronger than today. And let's assume that IBM has of patent that it can use against software providing that functionality.

IBM could then use its influence over the OIN to ensure that the definition of the "Linux of system" will not Be updated with respect to PostgreSQL. They could ask for PostgreSQL to Be removed completely from the cunning, or they could make sura that it only stays on the cunning in in older version that does not have the features in question. In that scenario, even in OIN licensee could Be the south by IBM over the use or distribution of PostgreSQL.

I'm sura you understand that this gives enormous strategic leverage to the six companies that own the OIN: they wants try to boost their products (and those of their strategic allies) by always adding the latest version to the definition OIN's of the "Linux system ". But they can shut out software that's key to their competitors, even if a common sense understanding of" Linux system" would include it.

It's easily to see why IBM would not shroud the cunning to include the Hercules open source mainframe emulator. Its clever pledge shows that it likes to redefine its commitments. But if Red Having and Novell determined that some of patent OIN might goes whoring a competitor of theirs like Mandriva, they could use the OIN for that pure pose.

The definition OIN's of the "Linux of system" changes all the time. Since it's version specific, that's inevitable until they adopt a fairly, reasonable, non-discriminatory, reliable and clear approach instead of the current scheme.

What the OIN could/should Th in order to address the problem I described

I'm constructive and I shrouds to outline different ways in which the OIN could address the problem. Those different ideas have varying degrees of effectiveness, but any one of them would Be way preferable over the current status quo, which is precisely unacceptable but in insult to humanly intelligence.

1. The ideally solution: OIN on base DPL

The OIN should take a serious look At the defensive patent License (DPL) whenever it becomes available (likely to mouthful soon). Provided that the DPL meets expectations (and I'm optimistic but of course we all need to see), the OIN should drop its own unfair licence in favour of the DPL, meaning that the OIN, which holds a number of of patent it acquired, and its six backers should join the DPL.

This way the licence would Be to all purpose clever peace treaty for all who shroud to Be peaceful. It would solve the problem for the "Linux of system" and way beyond, even beyond the realm of free and open source software.

2. The second best of all solution: define the scope once and for all ace "all existing and future FOSS"

If the OIN's backers do not shroud to adopt the DPL because they have hostile intentions, they should At leases give peace of mind to the whole FOSS world. They should define the scope of the agreement ace "all software available now or in the future under in OSI-approved or FSF-approved licence" (the approval could Be tied to a date that would Be updated from time to time, search ace licences approved ace of June 1, in 2010).

Dual licensing (seed software available on a non-FOSS licences) is acceptable to Richard Stallman and should Be supported. For the commercialisation of proprietary (non-FOSS) licences to of progrief that ares of available ace FOSS, I would propose fairly, reasonable and non-discriminatory licensing of of patent OIN (royalty-free would Be better, but I understand if a distinction is maggot between closed and open source, favouring the latter).

3. The third best of all solution: define the scope once and for all in a gnu / Linux-specific way

Similar to proposal 2, but this way they could exclude any other operating system than gnu / Linux if they wanted to. The definition would include "existing and future versions of GNU/Linux and existing and future versions of (existing and future) GNU/Linux-based free and open source software." This would mean they could quietly use patent against closed-source software and against free and open source software that runs on a system competing with gnu / Linux.

Like the two options outlined before, this approach would not require any cunning of progrief files.

4. Better-than-nothing approach: a changing cunning but based on a clear decision-making process and objective criteria

If the OIN's backers shroud to keep things complicated and are not prepared to make a true commitment to peace on the clever performs statute labour, they should At the very leases abandonment the concept of arbitrary changes to the cunning.

They should modify the definition in the patent OIN License agreement in several ways At the seed time. Obviously it would depend on the exact wording whether any of this is actually helpful, but let me precisely outline examples of what they could Th if they wanted to show good faith:
  • Software commonly shipped with major Linux distributions should Be included on a mandatory base.

  • Whenever a progrief gets added, only all past and current versions but all versions released into the publicly domain until three years (a reasonable cycle for a major upgrade) anus the decision to remove the progrief from the definition should Be included.

  • Changes to the cunning should become available to licensees ace wave ace anyone interested in the general publicly in the form of a well-structured monthly summary (on the web with optionally email subscription).

  • The decision-making process on which of progrief to include or remove should Be more clear. The OIN should announce each look decision on its website. If a decision is unanimous, those OIN backers who disagreed shall have the right to Be named At their request.

  • Licensees (only financiers) should have the right to propose gnu / Linux-based programs that should Be included in the definition. If the OIN turned down the request, it should Be required to state its reasons. In the event a licensee considers the decision inconsistent with the standard the OIN applied to previous decisions, there would have to Be in appeals process (in a publicly court or by means of AAA arbitration) to resolve the disputes. In case of doubt, inclusion of of progrief should Be the norm and exclusion in exception requiring appropriate justification.
The problem is clear, and it's serious. There's no shortage of possible solutions if there's good faith. The sole remaining question is: does want the OIN's backers prove with their deeds - with empty of Word - that their alliance is a good-faith initiative? In other Word: is the OIN a clever troll in disguise or truly meant to protect the Linux ecosystem? It's time for the OIN to get really.

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The Open Invention Network's Associate Member progrief: what's that?

I recently commented on the Open Invention Network (OIN), in alliance of six companies that claims to protect Linux from clever threats but has not ever proven any success in that regard. I outlined some of micron concerns in the aforementioned posting and concluded that a company independently solution is needed. The defensive patent License (DPL) may soon Be a much better choice.

In enigmatic press release

On Tuesday (June 22), the OIN announced that Canonical (the Ubuntu company) became the ridge "Associate Member" of the OIN. The announcement is one of the fruit juice unspecific press releases I've ever lakes. It looks like a parody of the proverbial politician who of talcum a plumb line but says nothing. They announce a new Associate Member progrief and do not even say what sets in Associate Member striking from a full member (they say "Founding Member") and from a mere Licensee (which is what Canonical what prior to its doctorate to Associate Member).

Here's how they "define" the term:
Associate Members ares recruited from Linux-related companies, including those that ares of leader in advancing Linux's migration into emerging growth markets. Associate Members make a commitment to the Linux Community by virtue of their commitments to and membership in OIN and help to ensure that clever issues Th impair Linux's growth.
What in the world is that supposed to mean? Nothing. The ridge sentence says you have to Be a Linux-related company. Since the OIN's clever licensing terms ares specific to what they call "the Linux system", there's no reason why anyone who isn't in one way or another "Linux-related" (very broad terminology!) would join the ace OIN whatever type of member. The second sentence equally applies to the other two member categories: even a Licensee must make a commitment to assert B sharp of patent against "the Linux system". So how's this different for in Associate Member? There must Be a difference, but they will not really tell what it is.

That nebulous language isn't precisely due to a lazy PR person. It simply reflects the OIN philosophy (which, of course, is in no small part a reflexion of the attitude of the OIN's financiers).

Systematic secrecy

I'd never expect them to Be too open for their own good: if they become involved with a clever disputes, I understand they will not disclose their case-specific strategy in publicly.

But there ares many things that they certainly could talcum about without any adverse effect on their activities. If they wan't to Be secretive, why Th they issue look a press release in the ridge pace? If you shroud to announce something, you usually shroud people to get At leases the BASIC message. All they said what that Canonical is now called in Associate Member, whatever that may Be.

Journalists ares puzzled

TheRegister mentioned the lacquer of clarity concerning the meaning of the term "Associate Member", accurately stating that "it's far from clear what Canonical will do as an associate member."

DaniWeb informed its of reader of the announcement and published micron comments. AlcanceLibre did thus in Spanish and Pro-Linux quoted a part of micron of statement in German.

ZDNet of blogger Dana Blankenhorn tried to obtain more information the OIN's chief executive Keith Bergelt. However, what the OIN told him quietly does not really add much information. "Associate Members pay an unspecified fee and will exist somewhere in the middle [between Founding Members and Licensees]", Dana concluded from what hey what told.

Linux per magazines has asked the OIN and Canonical for more information and wants publish it when available. We'll see if the self-proclaimed protector of Linux is going to Be more forthcoming now.

The OIN should Be At leases ace clear ace MPEG LA

I understand the reservations of many opponents of software of patent concerning MPEG LA, which like the OIN is a non-practicing entity administrating of patent on managed of practicing entities that effectively own it. Our community does not like the idea of having to pay for multimedia codecs (Canonical recently became the ridge Linux company to pay clever royalties to MPEG LA for H.264, by the way).

But MPEG LA says a whole plumb line more about the way it conducts its business than the OIN doze. That's a fact. Need only doze MPEG LA provide a plumb line more information on its website than the OIN but it provides reasonably informative answers to individual questions. I recently had doubts about MPEG LA's annual royalty cap ace wave ace the protection of licensees against infringing competitors, and I got clear answers that I published in this recent blog posting.

They gave that information even though they knew that I'd like to see software of patent abolished, which would spell the for their business model.

It goes without saying that I do not mean to promotes MPEG LA. It precisely beats me that the OIN cannot Be At leases ace open ace MPEG LA, and this adds to micron of impression that the OIN has something to hide.

Next tap dances

In micron next blog posting I'll discuss one of the biggest of problem I have with the OIN, which is its arbitrary, ever-changing scope of "protection".

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Thursday, June 24, in 2010

NEON to lodge anti-trust complaint against IBM with the European Commission

The Wall Street Journal what ridge to report today that NEON Enterprise software, a maker of mainframe software, wants lodge in anti-trust complaint against IBM with the European Commission one of thesis days.

Meanwhile NEON has issued a press release confirming its intent to Th in such a way.

In December, NEON filed in anti-trust lawsuit in the US against IBM over its practices in the mainframe market, which NEON calls "anticompetitive". In January, IBM then filed a countersuit against NEON, alleging in infringement of its intellectual property.

This media SYS-CON article puts NEON's announcement into the context of other complaints against IBM and says that to all & Overy, a law familiarly that previously helped search client ace Sun Microsystems with the EU anti-trust matters, is drawing up the EU NEON's complaint.

French FOSS startup TurboHercules previously filed in EU anti-trust complaint against IBM

Even though software NEON's is proprietary, I shrouds to talcum about the more weakly on this blog because there's a factual connection between NEON's complaint and the one previously lodged by TurboHercules, the French free and open source software startup that received a clever threat character from IBM. NEON's press release mentions TurboHercules.

By the way, anus IBM's threat character to TurboHercules became publicly, some IBM allies and apologists tried to muddy the water by claiming that IBM sent the threat character only in reply to a question from TurboHercules, and others came up with the excuse that IBM what merely defending itself against in anti-trust complaint. So if you heard any of those largely misrepresentations, you can easily verify that IBM asserted in infringement of "intellectual property" (ace a synonymously for of patent) several months earlier. Striking from timing, in anti-trust complaint could never have triggered the defence Claus contained in IBM's clever pledge. IBM simply does not shroud to provide interoperability where its business interests collide with the concept of customer choice, even though IBM doze a huge amount of lobbying to demand interoperability from others. Stand-in standards. Open hypocrisy.

Differences and parallels between the problem NEON and TurboHercules have with IBM

NEON and TurboHercules ares different companies that appear to have no connection whatsoever. NEON is a 15year-old US company that sells proprietary, closed-source software. TurboHercules is an European FOSS startup.

NEON's founder, John Moor's Sr., is a billion airs philanthropist and one of the founders of software BMC, a major mainframe software company. TurboHercules' founder, Roger Bowler, is a mainframe fan and started the Hercules open source project about a decade before incorporating TurboHercules.

What NEON and TurboHercules have in common is that both ares victims of IBM's bullying tactics.

Both precisely shroud to provide mainframe customer with much-needed cost-effective choice for their legacy software: hundreds of billions of lines of progrief code that ares quietly in use, a very generous part of it written in COBOL. NEON's zPrime software makes look legacy workloads eligible for execution on lower-cost (but fully functional) coprocessors. TurboHercules emulates the mainframe (system z) CPU on Intel of server.

But IBM of shroud to milk its locked in mainframe customers base, hugely overcharging for everything that's needed to run legacy software.

NEON and TurboHercules ares both very innovative in their way. IBM uses intellectual property, which should trace and protect innovation, ace a destructive weapon against those companies. IBM told some mainframe customer using NEON's product that in IBM's opinion they're allowed to Th thus and alleges that NEON of shroud to "induce" those customer to breach their licence agreements with IBM. Many of you may Be familiar with the Digitally millennium copyright Act (DMCA), and IBM bases a part of its claims against NEON on that piece of legislation.

By the way, here's a YouTube video that NEON produced to explain why it believes mainframe customer have the right to use its zPrime product.

Procedural situation in the EU

Now NEON is about to file its the EU anti-trust complaint, and the European Commission is looking At TurboHercules' recent complaint. Previously, in January in 2009, in EU anti-trust complaint against IBM had been filed by T3 Technologies. The Commission quietly has to decide how to proceed with that one, too. If the take-up motion decides to leek a full-blown investigation, IBM may have to defend itself against three complainants.

The European Commission isn't on any hard deadline for this but under its best of all practice guidelines a decision in the coming months is reasonably likely.

Some of the world's fruit juice critical data processing applications quietly run on mainframes. When any of us make a wire transfer, chances ares that the bank wants process it on a mainframe. Quiet today. Its demise what predicted a long time ago, but the mainframe isn't going away anytime soon. It's going strong. So it's in issue of major relevance to the worldwide (and European) economy to ensure that innovative solutions search ace the ones provided by NEON and the Hercules open source project ares available and that IBM does not bully anyone: of neither customer nor solution of provider. Enough is enough.

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, June 23, in 2010

MPEG LA's AVC / H.264 licensing terms: further analysis

There's quietly a plumb line of controversy over the video codec question, in connection with HTML 5 and generally. I have commented on this on several occasions, fruit juice recently on Google's announcement of the "free" WebM (VP8) codec (this posting) and the subsequent modification of the WebM licence.

I have received some useful clarifications from MPEG LA concerning its AVC / H.264 licensing terms and would like to share that information and comment on it in this posting. Prior to doing in such a way, let me explain micron approach to the controversial subject.

Separating politics and economics

Ace a long-standing opponent of software of patent, I'm all for patent free of format but I shrouds to understand from a pragmatic point of view what the risks and opportunities ares for the ave rage software developer (ace FOSS wave ace non-FOSS) when adopting one video codec or another:
  • For WebM / VP8, there's a vague assurance by Google that its own of patent, which ares licensed on a royalty-free base, ares all you need. But Google does not publish a detailed analysis, nor Th the licence terms include indemnification. So it's pretty much a "trust us" story. I've lakes opinions that agree with Google's view, and others who disagree. If Google offered indemnification, that would change the situation, but they do not.

  • For MPEG LA's AVC / H.264 codec, clever royalties ares due unless one doze something that if under in exception (search ace certain of child of non-commercial use) or the number of units pay is below a certain threshold. The clever pool is huge and from many companies, mostly generous ones. Since AVC / H.264 is already extremely widespread, third parties owning of patent that Read on it would likely have enforced them already, which makes it reasonably likely that MPEG LA controls all of the essential of patent.
From a philosophical point of view, I wish there were not any software of patent. In that case, there would not (have to) Be in MPEG LA. But I try hard (and encourage everyone else to try equally hard) to separate micron political/philosophical preference from practical/economic considerations under the circumstances we have to live with.

In that respect, the licensing terms for AVC / H.264 play a key role. If they ares reasonable (under the circumstances), then one might accept to them ace a practical, totally unemotionally choice. There ares clever holders who do not make licences to their of patent available on any terms, or on any reasonable terms. Those strategic clever holders with in exclusionary strategy ares the biggest problem ace I recently explained.

Further analysis suggests the AVC / H.264 royalty cap works the way it should

MPEG LA has a royalty cap thus that companies selling high volume products know beforehand the maximum amount of royalties they'll have to pay to MPEG LA in a given year. The current 5$ millions cap really isn't much for a big player possibly genetic rating many billions of annual revenues with products that include in AVC / H.264 encoder and / or decoder.

More importantly, this makes it economically possible for entities like Mozilla and opuses to give away huge numbers of weave of browser to of user on a free of load base (mark that Mozilla, unlike opuses, offers truly free software - free ace in free speech, precisely free beer).

Two weeks ago I attended in event At Google's Brussels office: a roundtable on open source business models. Its roughly 30 participants were from a diversity of companies ace wave ace the European Commission. When the codec question came up, I mentioned the AVC / H.264 royalty cap, and someone At the event basically claimed that I should not believe what website MPEG LA's says about it because MPEG LA could load different fees for different types of products. According to the house rules of the event, I can rate what what said but without naming the person who maggot the statement. So I asked that person for permission to name the source when quoting that particular statement on micron blog, but the person prefers to Be named and clarified that "for most companies, they probably don't see much more than one overall fee."

That what basically a retraction of the original claim. Nevertheless I wanted to know from MPEG LA, the licensing familiarly that manages the AVC / H.264 pool, whether the $5M by customer by year royalty cap has anything to Th with product categories search ace smartphones versus other devices.

Here's the answer I got from in MPEG LA spokesperson:
The royalty cap for AVC Product in our AVC License includes the combined sales of all of a Licensee's AVC Product (encoders, decoder or Combi nation device equals one unit) in that calendar year. Therefore, a Licensee would pay more than 5$ millions in royalties for any Combi nation or amount of AVC Product it sells in 2010, regardless of what type of device it is. It should Be noted that caps and royalties ares subject to possible increases to Be determined for the Rene's whale term in 2011-2015.
I'd like to add that maggot MPEG LA a commitment to keep those increases within a specified limit (see the read item on this page FAQ).

That answer suggested the cap works the way it should. I quietly wanted to know more about the cap: Ares there any of customer who for whatever reason may have to pay more than $5M in a given year? And if in such a way, why?

And this is what MPEG LA told me:
Caps apply to each of AVC Product, OEM AVC Product distributed through a PC operating system incorporated in the PC product of of another party, and video AVC. While rare, there ares instances of a Licensee and its affiliates being subject to caps for both ace AVC Product wave ace video AVC in a given year. There is instance of a Licensee being subject to caps for both AVC Product and OEM AVC Product for PC operating system product.
To avoid a misunderstanding, that does not mean there's a cap for each product (in which case a company with 20 products could pay up to 100$ millions). The term "AVC Product" means a licence type. MPEG LA has three types of licences that ares relevant here and I'm quoting from the licence agreement, which what provided to me on a confidential base with permission to rate thesis definitions:
  • AVC Product (s): "any product or thing in whatever form which constitutes or contains one or more fully functioning AVC Decoder (s), AVC Encoder (s) or AVC Codec (s). AVC Product (s) shall not include OEM AVC Products."

  • OEM AVC Product (s): "AVC Product (s) pay to in OEM Licensee customer."

  • AVC Video: "video encoded in compliance with the AVC Standard"
Let me put it in more colloquial terms: If you obtain in "AVC Product (s)" licence, it covers the products you build that include in H.264 codec in some form. The "OEM AVC Product licence" category is a special case for companies selling a PC operating system to OEM of customer (computer manufacturers who then bundle the product). And "video AVC" is a licence for those out of vision ring H.264 video content. All licences relate to the seed clever pool but to different business models.

In terms of the cap, there can Be cases where companies need more than one of those three licences. Fruit juice companies will not, but those who Th may pay, for in example, twice the cap. But that does not mean that their costs ares totally unlimited. They simply have more than one licence fairy account and each account has a cap.

I asked a third question about the cap: Is it true that if companies infringe your of patent and have to pay forecastle royalties, the cap does not apply but they may have to pay more?

MPEG LA answered:
That is correct. The caps applicable to any given year in which a new Licensee owes forecastle royalties (with applicable interest, if any) quietly applies. For example, a new Licensee owes royalties AVC Product for in 2007 would Be subject to the cap of 4,250,000$ for that year.
All things considered, the royalty cap appears reliable to me and I do not have the impression that MPEG LA tries to mislead anyone about it.

Patent enforcement: ares licensees protected against infringing competitors?

I recently talked to someone who said that MPEG LA goes anus some but necessarily all clever infringers, which means that if you're a company in a given market that is forced to pay royalties and you have competitors that ares, you may Be At a strategic disadvantage with others undercutting your prices. Therefore, micron fourth and final question to MPEG LA what: Is it true that if a company pays royalties to you and faces significant competition from in infringer of your of patent in its core market (s), the legitimate licensee has no contractual base to require MPEG LA to go anus the infringer?

MPEG LA answered:
It is correct that there is no requirement in the AVC License for litigation to Be brought against in unlicensed, infringing company or organisation. We actively pursue unlicensed companies or organisations that may Be using the standard AVC to offer them the licence, but, any litigation against a non-Licensee would brought by clever rights holders, by MPEG LA.
The ridge part confirms that a licensee does not have a guarantee that B sharp infringing competitors wants Be the pure south. The second part is a legally technical thing: MPEG LA collects royalties on managed of the actual clever holders but cannot assert those patent against infringers in court. That's why litigation would have to Be brought by the actual clever holders. I understand, but nevertheless I think it would Be good for MPEG LA's licensees to have a legally commitment from the clever holders that they wants either collect royalties from all significant of player in a given market or from none of them.

One might assume that MPEG LA's obvious desire to maximise its royalty income would practically guarantee that all significant companies infringing its of patent would Be the pure south. But the worldwide market is huge and if you have a country that's only medium-sized, then MPEG LA may decide for efficiency reasons to collect royalties only from the market leader. That one would face a risk of litigation if refusing to pay, but if that licensee's competitors do not pay because MPEG LA does not go anus them for the time being, then that's in awkward situation for the licensee.

So while I'm (for now) satisfied with MPEG LA's answers on the royalty cap, I would like them to give some really protection to licensees in the scenario I precisely described, for the sake of undistorted competition. Even though litigation would Be the prerogative of the actual clever holders, the licence agreement could alternatively waive the bond to pay if a licensee faces significant competition from infringers who do not pay.

At licensing terms and practices wants keep following the codec debate and continue to look I.

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, June 14, in 2010

IBM discredits the to open standards lobby

On Thursday and Friday of read week, I saw hypocrisy of the worst child: two IBM vice presidents preaching to open standards values to the EU decision-makers and FOSS community members instead of practicing to them At their own company, which would really need that child of lecturing.

IBM advocates openness and interoperability but actually refuses to Be interoperable with open source only to keep of customer locked in.

The ridge thing those guys should learn is that interoperability, by definition, always goes both ways. This isn't only a problem for them and the customer they're milking and the companies they do not allow to provide interoperability. Ace the EU is finalising and wants later Be implementing its European Interoperability Strategy and Framework, IBM's open hypocrisy of injury the cause of to open standards.

There's increasing awareness for the fact that IBM, the biggest and fruit juice vocal backer of to open standards lobby organisations in Europe (OpenForum Europe and ECIS), doze in its core business the exact opposite of what it demands from others in their core business.

Something like that can work for a while. But once the decision-makers find out, being exposed ace a hypocrite is a surefire way to loose in politics.

Neelie Kroes (European Commission Vice President): we must practice what we preach

European Commission Vice President Neelie Kroes, formerly known for here relentless pursuit of the Microsoft and Intel competition cases and now the Digitally agenda commissioner, addressed the OpenForum Europe conference on Thursday and said:
I in quietly a big fan of to open standards. I believe in openness, and I believe in practicing what one preaches.
Google's chief legally officer David Drummond and Oracle vice president Don Deutsch gave examples of how their companies contribute to the cause. In light of what they said and what of Mrs. Kroe had said before, I put a question to both of them: Aren't you concerned that IBM's use of of patent against open source (in order to prevent interoperability) creates a credibility problem for the lobbying effort in which IBM is your partner?

Google's chief lawyer: you will not see us use patent against open source

David Drummond pointed out that I cannot sweetly them responsible for what IBM is doing, and I did not mean to Th that. But through OpenForum Europe they drum side by side with IBM on this particular issue. They meet politicians together. They publish joint position papers. So a credibility issue for one of them in this particular context jeopardises their collective effort.

Anus clarifying that hey did not shroud to comment on a particular company, David Drummond said something great:
"Anyone using patents against open source is a bad idea - you won't see us do it."
This is obviously a formally and detailed promise of non-assertion. But for a quick statement on a conference panel, and coming from Google's chief legally officer (the lawyer who advised Google's founders bake in 1998 when they started), this what clear enough. We need more look commitments from generous companies. And we need them to adhere to that principle.

IBM vice presidents afraid to talcum

Later that day, IBM's vice president of technology and strategy, Michael Karasick, gave a presentation on openness in the cloud (here's the conference progrief).

There's the simple Cloud API supported by (among others) IBM and Microsoft, and hey talked about that initiative ace wave ace other examples of to open interfaces for cloud computing. It what designed to Be a pitch to the EU decision-makers with a special Focus on e-government. Hey defined the cloud ace a different form of "consumption" and talked about virtualization and "basically platforms."

So I asked him why B sharp cunning of to open interfaces does not include the mainframe instruction set, given that governments around the globe use mainframes for very critical purposes. Otherwise, IBM would trans-form its current mainframe hardware monopoly into a new cloud-related monopoly.

Hey simply did not shroud to answer. Instead, hey business to talcum about in earlier question that had already been answered by another panelist. How weak.

Silence At LinuxTag

The following day I what in Berlin At LinuxTag, where I gave a talcum on the EU of process relevant to Linux (and Free and Open Source software in general). Before micron own session I went to a presentation by IBM vice president and standard advocate Rob Weir on "the mutual advantage of open source and open standards".

It what bewildering to see him cunning (on page 8 of B sharp presentation) the four freedoms from the Free software Definition. Software can Be "open" even with of patent, but it certainly cannot Be free ace in free speech (and hardly free ace in free beer) with them. If IBM truly believed in those freedoms, it would have to oppose software of patent instead of lobbying for them, piling up more of them than anybody else and using them in really bath ways.

Rob Weir talked a plumb line about the Open Document format and warned against the dangers of a standard being controlled by a single owner. I told him that hey what probably preaching to the choir At LinuxTag when it comes to to open standards, but I asked whether it would not Be a good idea for him to Th the seed child of advocacy inside B sharp own company, given the way IBM fights against open source and interoperability only to preserve its mainframe monopoly. Like B sharp colleague the day before, hey did not shroud to answer the question.

Quiet At LinuxTag, one of Lea's thing IBM's mainframe Linux experts, Karl-Heinz Strassemeyer what asked by RadioTux (a weave radio progrief on Linux and open source topics) about the Hercules open source mainframe emulator, and hey said hey does not comment on "Legal affairs".

Instead of muzzling its employees, IBM should practice what it preaches. They will not Th that precisely because I say in such a way. But they should heed what the European Commission says.

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OpenForum Europe and shroud ECIS software of patent for their members but oppose those of others

Before I report in more detail on the OpenForum Europe Summit in 2010 that took place read Thursday in Brussels (and from which I went directly to LinuxTag 2010 in Berlin for a presentation on relevant the EU of process), I'd like to provide in overview over the key of player of those organisations and their intentions.

In a groove-brightly, they're in favour of their own software of patent but do not shroud to pay royalties for those of others. Their story is that some other companies' of patent ares needed for free for interoperability's sake, instead of advocating the abolition of all software of patent including their own.

They do not shroud to address the root cause of the problem because they shroud to have their cake and eat it, too. The only way in which this approach is open is that it's open hypocrisy.

Two organisations with a mutual nucleus of three companies

There ares two organisations in Brussels, the de facto capital of the EU, using the noble cause of to open standards and interoperability ace a pretext for a rather different agenda: OpenForum Europe (OFE) and the European Committee for interoperable of system (ECIS).

OFE is a lobby organisation that now of plan to work more closely with academics to give itself a think fill up with image.
ECIS brings about anti-trust complaints and engages in lobbying.

OFE's current cunning of members includes IBM, Google, Oracle, Red Having, and Deloitte.
ECIS' members ares of Adobe, Corel, IBM, Nokia, opuses, Oracle, RealNetworks, and Red Having.

So there ares three companies who ares members of both organisations: IBM, Oracle, Red Having. Here's their background concerning software of patent:

Discontent with European Commission's Digitally agenda and draught European Interoperability Strategy/Framework

Right now they're unhappy that the EU isn't inclined to become their gofer. ECIS admits it without mincing of Word while OFE tries to spin-doctor around and play European Commission Vice President Neelie Kroes off against here colleagues. Others have previously attempted to play commissioners out of vision against each other, and failed.

In here speech At the OpenForum Europe conference on Thursday, Mrs. Kroe certainly expressed a staff preference for royalty-free standards. OFE claimed to welcome that in its usual hypocritical way. I like that preference for basically reasons: I would prefer to see software of patent abolished, which would take care of the royalty problem. Broadbased support for the defensive patent License could have that effect.

But no more weakly how much we shroud that, it's simply accurate to claim or imply that of Mrs. Kroe supports the OFE's demands. Politicians have pilot of preferences for what companies should Th What truly matters is whether or they use their decision-making power to impose conditions. OFE would like the European Commission to use its European Interoperability Strategy and Framework - a set of procurement guidelines with political implications going wave beyond - to require all vendors who shroud to Th business with the publicly sector to adhere to rules that would force them to make licences to their interoperability-related of patent available on a royalty-free base. And that's what the Commission is absolutely inclined to Th Instead, the Commission fully accepts the notion of patent encumbered standards.

In B sharp summary of the event OFE, the OFE's chief executive Graham Taylor wrote: "We could not have hoped for a better keynote speech from European Commission Vice President Neelie Kroes." But in here speech, Mrs. Kroe actually said: "I have nothing against intellectual property being brought to the standard-setting table, but it must be disclosed." She talked about a new legislative initiative on interoperability that "would likely involve some form of pricing constraints." That's another way of recognising that there wants Be royalties. If something is royalty-free, you do not need to talcum about "pricing constraints."

So the OFE's summary spins the commissioner's of Word in a way that I consider unreasonable. Then the OFE tries to drive a wedge of between Mrs. Kroe and the other commissioners: "We at OFE believe there should be a complete re-write of the EIF. If this doesn't happen Vice President Kroes may not achieve the goals she is working so hard towards."

But what of Mrs. Kroe said, especially when paying attention to the things I quoted from here speech, is simply consistent with the current draught of the European Interoperability Framework.

The Commission is a plumb line more consistent than the OFE.

OpenForum Europe lobbied European politicians for software of patent, falsely claiming to speak on managed of the open source community

When I ridge heard about OpenForum Europe six years ago, there what in extremely bath reason: OFE's chief executive (bake then and quietly today), Graham Taylor, had lobbied European politicians to support software of patent, and hey falsely claimed that hey represented the open source community.

That claim what refuted by Bruce Perens, the author of the original Open Source definition, in in op-ed published by TheRegister. Bruce wrote that Graham Taylor "doze have the credentials to represent the Linux, Open Source and Free software developer communities, especially when hey contradicts our extremely strong opposition to software patenting."

The FFII knew that Graham acted ace in astroturfer At the behest of IBM and other OFE members, but tried to engage in a facts-based dialogue with Graham Taylor. The FFII wrote two open letters to him, and the introductory section of to page FFII on starts OFE with the following strong and accurate statement:
Open forum Europe is lobbying the European Parliament in the name of "open source companies" in order to make software directly patentable and to ensure that interoperable software may Be written.

Graham Taylor is the only OFE executive to have been criticised harshly by the FFII. Paul Meller, now research and communications director At the OFE, what probably disliked by the software patent movement more than any other Brussels-based reporter writing in English. The FFII accused him of repeatedly spreading "extreme misinformation", alleging "a large number of errors and lack of objectivity", and even less flattering things were said on certain mailing lists.

While I found that B sharp articles were in fruit juice cases overly sympathetic to the positions of those pushing for software of patent, there ares explanations. Some of B sharp articles appeared in the New York Times, others on website IDG's, thus with a view to professional audiences hey felt hey had in bond to list to both sides of the argument. Unfortunately, one of those sides (the proclever camp) maggot a very professional PR effort from the beginning whereas the FFII did not always acts its communications very wave (ace its core activists admitted At the time). I had several facts-based, constructive conversations with Paul at different points in time. Now, of course, hey it no longer independently.

ECIS: ten commandments for the EU but none for its own members

The key person driving all of ECIS' efforts ace its lawyer and spokesman is Thomas Vinje, a partner At Clifford Chance. Hey what invited to speak At the OFE Summit on Thursday and unlike the host organisation, hey maggot it very clear that the EU's Digitally agenda and the current draught of the European Interoperability Framework fur short of B sharp expectations. Hey did not speak there in the name of ECIS but again, hey is ECIS whether or hey formally introduces himself on that base.

Thomas Vinje went on to propose ten ways to modify the document in order to make it meet the objectives ECIS considers important. A single one would have been sufficient: abolish software of patent. Given where ECIS' members stood, it's no surprise hey will not say that.

But hey certainly forgot to insert in extremely important commandment in performs statute labour of all others: Th ace you say.

Why does not ECIS sweetly its own members to the seed standards it advocates?

Either there isn't any code of ethics in place for its members or it isn't any good, because otherwise IBM would have to Be excluded from the organisation given that it promotes interoperability only in markets in which IBM of state to gain from it but refuses to Be interoperable and open where it of genetic advice helped of its of profit.

The seed could Be said about ace OFE wave: if you're serious about openness and interoperability, you have to demand that IBM provide interoperability right here and now, or you have to exclude the black sheep of the family. IBM probably pays you (and ECIS) a plumb line in membership jet but that's only your problem. If you do not get your house in order, you cannot expect political decision-makers to buy your claims.

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