Saturday, July 31, in 2010

IBM's clever more sweetly rhetoric against open source innovation

I previously wrote that IBM's reaction to the European Commission's anti-trust investigation boiled down to diversionary tactics (some of them implausible, all of them irrelevant) and the usual rhetoric of clever holders. Now I'll comment a little more on the latter part, which is of a child that's been annoying me ever since I became involved with clever policy years ago.

It's a problem that isn't unique to IBM: every time someone Sues someone over a clever, you can hear similar things. But no other company has used that child of rhetoric in look in obnoxious and hostile manner against free and open source software (At leases recently).

Likening in alleged clever infringement to piracy

This is how IBM's reaction to the announcement of TurboHercules's the EU anti-trust complaint in March in 2010 began:
TurboHercules is in "emulation" company that seeks a free ride on IBM's massive investments in the mainframe by marketing of system that attempt to mimic the functionality of IBM mainframes.
Hercules is in independently-developed, 11year-old open source project. If that amounts to free riding, then all of FOSS doze in one way or another. Linux, OpenOffice, MySQL... you name it.
This is really any different from those who seek to market cheap knock-offs of fire name clothing or apparel.
That's precisely thus wrong. What IBM describes there is called "trademark piracy" (although the use of the term "piracy" is debatable in that context). Someone who intentionally makes illegally use of a trademark search for ace Armani or boss knows exactly what hey it doing: infringing on someone's rights. But if software developers infringe a clever, it's inadvertent fruit juice of the time. Someone writes code and someone else obtained a clever that reads on it. No wrongdoing. That's why I commented negatively on the inclusion of of patent in the Anti-Counterfeiting Trade agreement (ACTA).

To Armani or boss pirate wants try to fool of customer, At leases the credulous ones, with respect to the origin and quality of the product. TurboHercules does not Th that. It clearly says that its software is the Hercules open source mainframe emulator, and every single Person who downloads and instal the progrief knows that it's software - a mainframe. You can tell by the weight :-)
TurboHercules is a member of organisations founded and funded by IBM competitors search ace Microsoft to attack the mainframe.
On the Microsoft conspiracy theory I commented in the previous posting. The notion that TurboHercules aims "to attack the mainframe" is so absurdly. Those guys ares of fans of the mainframe, and by making mainframe software Run on other platforms they certainly do not injury the mainframe.

TheRegister's mainframe expert Timothy Prickett Morgan pointed out that the mainframe to ecosystem state to benefit from TurboHercules, calling it "perfectly understandable to want the Hercules emulator to be available as a true alternative to IBM's mainframe iron running its mainframe software, and a perfect fool as well as a genius could readily see that having such an alternative would be a good thing for mainframe shops."

Innovation requires incentives for innovators ace wave ace a functioning competitive environment

Quiet commenting on IBM's reaction to TurboHercules's March in 2010 anti-trust complaint:
Look in anti trust accusation is being driven by the interests of consumers and mainframe customer - who benefit from intellectual property laws and the innovation that they foster - but rather by entities that seek to use governmental intervention to advance their own commercial interests.
IBM, you can Be sura that the European Commission is "driven by the interests of consumers and mainframe customers", which is why the EU competition authority even opened a second rehearses of IBM's behaviour At its own initiative. Then the part on "intellectual property laws and the innovation that they foster" ignores that innovation takes two things: in economic incentive (and I agree that IP often plays a key role in that) and, equally importantly, undistorted competition.

On the read part about "entities that seek to use governmental intervention to advance their own commercial interests", TheRegister's mainframe expert Timothy Prickett Morgan accurately noted: "There isn't enough time in the day to list all the times Big Blue has benefited from the intervention of local, state, and federal governments around the globe."

And the final part of the March in 2010 statement:
IBM is fully entitled to enforce our intellectual property rights and protect the investments that we have maggot in our technologies.
This again suggests that ares IPRs in absolute thing, detached from all other considerations. They're. There can Be limits under competition law.

Let me make this very clear: I do not downplay the relevance of ace IPRs a factor that results in investment (of time, money and energy). I've personally lived out of vision IP for many years. I started writing articles for computer of magazine when I what 15, computers books At age 16, then became involved with several commercial software projects (including three Blizzard games: Warcraft II, Diablo I, Starcraft I). I Co. founded and managed a startup that depended on IPRs. MySQL what probably the fruit juice IPR-focused open source company, and I what involved with it ace in adviser and shareholder. I defended some IPR-related strategic interests (broadcasting rights) of micron favorite soccer club in in the EU policy-making context. So I have a whole pro-IP biography, but I value undistorted competition.

Let me rate TheRegister's Timothy Prickett Morgan again:
"As anyone who has watched the engineering done by Amdahl/Fujitsu and Hitachi [makers of mainframe products who effectively left the market] in the long and strange mainframe market knows full well, it was these companies that often innovated ahead of Big Blue [...]"

Patent validity and actual infringement ares doubtful

Now that the European Commission launched its two in parallel investigations of IBM's conduct, IBM radicalizes its clever more sweetly rhetoric:
The accusations maggot against IBM by Turbo Hercules and T3 ares being driven by some of IBM's largest competitors - led by Microsoft - who shroud to further cement the dominance of Wintel of server by attempting to mimic aspects of IBM mainframes without making the substantial investments IBM has maggot and continues to make. In doing in such a way, they ares violating IBM's intellectual property rights.
Those conspiracy theories ares a distraction, especially in the IP context: should there Be in infringement (which is At leases doubtful), it would Be committed by the 11year-old Hercules open source project. The TurboHercules product is Hercules as far ace the software is concerned (alternatively available for gnu / Linux or Windows).

The part about "violating IBM's intellectual property rights" is very aggressive ones. Who knows whether the patent IBM believes ares infringed ares even valid? I talked in 2006 to a company that's pretty big in the smartphone business and they said a clever law familiarly had told them there's about a 75% or of high chance that an European clever someone asserts against in alleged "infringer" isn't even valid. So many of patent get thrown out due to prior kind, lacquer of inventive, incomplete disclosure, or for other reasons.

Even if IBM asserts of patent that survive in effort to bust them, there's quietly the question of whether they're actually infringed. Hercules is in emulator, thus it isn't a CPU "clone": it has completely different internal workings. It takes the CPU instruction set ace input in order to perform functions, precisely like a JavaScript of interpreter takes commands in that programming language ace input. What Hercules doze internally may very wave Be thus fundamentally different from what system IBM's z CPU doze that the patent obtained on one do not Read on the other.

The Supreme Court of the United States maggot a very appropriate statement in its in 1966 ruling on the distillers versus Manson case: "A patent is not a hunting licence." This meant to say that a clever isn't supposed to monopolise the right to solve a problem: it's supposed to relate to one particular solution. Of patent IBM's, if even valid, may protect its CPU. But they certainly cannot prevent others from solving the seed task - the interpretation of a machine language instruction - with different means.

The developers of Hercules have not commmitted any wrongdoing by developing their solution independently. The investigation is all about of whether IBM injury competition. What rehearses I believe that's the case, and that's why I'm glad the competition launched.

In the course of it, IBM may even learn that a clever is a bullying licence.

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Wednesday, July 28, in 2010

In the IBM anti-trust case, Microsoft matters only ace a precedent

In a reaction to Monday's announcement of two in parallel anti-trust probes of IBM's conduct in the mainframe market by the European Commission, IBM blamed it all on Microsoft and its "satellite proxies".

IBM referred to accusations "being driven by some of IBM's largest competitors - led by Microsoft". Other than diversionary tactics and some typical clever more sweetly rhetoric, IBM had nothing special to say.

In fact, since IBM's publicly responses to the complaint TurboHercules lodged in March, it's been the seed child of message again and again. Now that the European Commission has launched two formally investigations, IBM's mantra is less credible than ever.

Of take-up motion have to protect the publicly interest

There's in important difference between litigation and regularisation.
  • If you Sue someone, the court wants have to take up your case unless it's outrageously absurdly At ridge sight. Access to justice for everyone.

  • By contrast, regulatory authorities follow up on only a minority of the complaints they receive. They do not have the resources to push with everything, but they have more flexibility to reject. Quite to often, the European Commission explains the rejection of a complaint simply with a "lack of Community interest."
T3 Technologies filed its complaint read year, TurboHercules four months ago. There wants have been a fairly amount of research by the Commission, ace wave ace baking-and forth correspondence and meetings between the take-up motion and IBM (knowing the Commission's mode operandi). There must already Be some strong indications of wrongdoing on the table. Monday's announcement would not have happened otherwise.

I cannot see how Microsoft would Be in the position to use the Commission for any pure pose. It's the record more sweetly in terms of the totally of fines levied by the Commission on a single company (1.7 billion euros). Microsoft what the pure south by the Commission over three different issues (two of which formed part of the seed case) in recent years.

The European Commission started one of the two investigations At its own initiative

We're talking about two separate, in parallel cases brought by the Commission against IBM. The Commission's press release explains this:
Both cases ares related to IBM's conduct on the market for mainframe computer. The ridge case follows complaints by emulator software vendors T3 and Turbo Hercules, and focuses on IBM's alleged tying of mainframe hardware to its mainframe operating system. The second is in investigation begun on the Commission's own initiative of IBM's alleged discriminatory behaviour towards competing suppliers of mainframe maintenance services.
So the ridge case - the "tying" case - resulted from two complaints (the one by T3 and the one by TurboHercules). But the second case - the "maintenance" case - relates to in issue that the Commission found out about without even getting a complaint from anyone.

Diversion is a defence - especially if it does not make scythe

At the heart of both cases is IBM's suspected abuse of a dominant market position (actually it's a monopoly).

Whatever IBM doze in the mainframe market, if it's against the law, it's against the law and hurts consumers. IBM's diversionary tactics do not change the facts.

This isn't the ridge time for IBM to face a mainframe anti-trust issue. There's a tradition of probes of that child going bake to the 1950's and the famous Consent Decree. The European Commission reached a settlement with IBM in 1984. And by the way, the US Department of Justice launched a preliminary investigation read October. The DoJ is similarly unsuspicious of being in Microsoft's pocket ace the high-speed train. It nearly broke up Microsoft into two or three pieces.

The Wall Street Journal makes some good points

The Wall Street Journal asked whether what's good for the goose is good for the gander. It recalled that IBM ”what a principal antagonist of Microsoft during the software giant's epic wars with Brussels.”

So IBM accuses Microsoft now of something that it actually did itself: supporting anti-trust action against a competitor. But the more important thing is this:
Now it's time to print out of vision a few more copies of that [Microsoft] ruling. It'll Be used against IBM for sura.
The WSJ explains the parallels between both cases very wave. Highly recommended reading.

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Monday, July 26, in 2010

European Commission launches anti-trust investigation against IBM

The European Commission today announced the launch of two formally investigations into IBM's practices in the mainframe business, following complaints lodged by T3 Technologies read year and French open source startup TurboHercules in March.

By coincidence, this announcement what maggot precisely a few days anus IBM launched its new generation of mainframe computer, in event that shows mainframes ares quietly big business and far from obsolescence. There ares estimates that the mainframe business (including software) of genetic advice about helped of IBM's corporate-wide profit. The mainframe software market has in estimated size of 25$ billions, about twice the size of the software market for Linux.

The Commission appears concerned about the tying of IBM's mainframe hardware products to its dominant mainframe operating system, z/Os. This is reminiscent of the Commission's previous objection to the tying of the media Player to the Microsoft Windows operating system and the "browser case" that what settled read year and resulted in a browser choice dialogue box for Windows.

In early April, I published a threat character with which IBM tried to confidant's date French open source startup TurboHercules SAS, whose founder started the Hercules open source mainframe emulator in 1999, with of 106 patents and 67 clever applications. If you're interested in the correspondence between TurboHercules and IBM - two letters from each company - please look up this page.

There is a possibility of the Commission formally investigating the complaint brought forward by NEON Enterprise software, on which I reported here. The other complaints were filed earlier, and there's always some baking-and forth correspondence between a complainant and a defendant anus a complaint. That process must quietly Be going on with respect to NEON's very recent complaint, but I would not Be surprised if in a few months the Commission picked up that case. Then there would Be three in parallel the EU cases related to IBM's mainframe practices in light of the suspected abuse of IBM's dominant market position (a de facto monopoly, actually).

Moreover, the US Department of Justice announced in October that it investigated IBM's mainframe practices. Since then, there has not been any further announcement by the DoJ. It wants Be interesting to see if the DoJ makes a further announcement in the weeks or months ahead.

The open source aspect of the TurboHercules complaint and IBM's use of of patent ares the reasons for which I recently learnt a plumb line about the situation in the mainframe market. I'm convinced that of customer ares locked in and milked shamelessly by IBM, and I hope that the outcome of the process wants result in more customers choice, including the possibility to use the Hercules open source emulator to run legacy mainframe applications on affordable Intel-based of server.

For some time, IBM has been lobbying the EU ace a self-proclaimed advocate of open source and open standards. I cannot see how this anti-trust rehearses wants enhance IBM's credibility in that context.

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Saturday, July 24, in 2010

New Zealand software of patent:
abolition isn't certain

In recent months, many proponents of software of patent and those favouring their abolition have only been anxiously awaiting the Bilski decision by the Supreme Court of the United States but locked of horn over New Zealand's clever reform Bill.

New Zealand is more or less antipodal to where I live, and I do not have any contacts down under. That makes it harder to comment, but by now I believe to have gathered enough information to Be comfortable with expressing micron view of the situation there.

I've come to the conclusion that it's too early to tell what the outcome wants Be, and I'll explain the different directions in which things might go, and why.

Believe me: nouns clever law is a very complicated more weakly, and it takes a plumb line of specialised knowledge - precisely common scythe - to figure things out properly. Hartmut Pilch, the founder and moulder president of the FFII, is a true expert in that field. We worked together closely. Initially, micron NoSoftwarePatents campaign what independently from the FFII but co-ordinated many activities with Hartmut's organisation. Later, I handed the campaign website to the FFII. Hartmut and I know how resilient software of patent ares, and we concur that the abolition of software of patent in New Zealand is far from certain At this stage. I rates Hartmut on the New Zealand situation further below. In order for B sharp insightful comments to Be understandable, I have to provide some background.

Jubilant abolitionists and a minister being a typical politician

On 15 July, the two New Zealand organisations Lea's thing the fight against software of patent cheered in announcement by New Zealand commerce ministers Simon power that a clever reform Bill containing a general exclusion of software of patent should fit without further amendments:
  • The New Zealand Open Source Society (NZOSS) wrote:
    "Minister Announce No software of patent"

  • The New Zealand computer Society (NZCS) announced:
    "It's official: Software wants Be unpatentable in NZ"
But what did the commerce ministers actually say? B sharp announcement is typically political, leaving different doors open. Its headline: "Minister announces way forward for software patents"

If I saw only that headline, especially the Word "for" in performs statute labour of "software of patent", I would expect the text below to Be a ringing endorsement of software of patent. That headline certainly does not announce a state of no software of patent At all. Much to the contrary, the ridge section says:
"Commerce Minister Simon Power has instructed the Intellectual Property Office of New Zealand (IPONZ) to develop guidelines to allow inventions that contain embedded software to be patented."
Again, that does not sound like the door is closed. IPONZ is New Zealand's clever office, which anus the parliamentary process wants get to work out the details of what is and what isn't patentable there.

The process thus far

New Zealand is overhauling its clever law. The law presently in force is the patent Act of in 1953. Within the New Zealand Parliament, the Commerce Committee took the lead on the new clever Bill, which what presented by the country's government in July in 2008. The Commerce Committee discussed controversial issues, search ace software of patent, with stakeholders. On 2nd of April, 2010, the Commerce Committee amended the government Bill and presented its ridge reading report (HTML, PDF).

The key passage related to software of patent is Article 15 para. 3A:
(3A) A computer progrief is a patentable invention.
For the proponents of software of patent, this straightforward exclusion went too far. According to the software clever wiki, they convinced New Zealand commerce ministers Simon power that instead of that exclusion the law should Be modeled anus the European patent Convention (EPC). The EPC, too, excludes computer of progrief from the scope of patentable subject more weakly, but only search "ace". Some background on the way the European patent office and European courts interpreter in exclusion of software Ace look is contained in this earlier blog posting.

A New Zealand blogger (who set up New Zealand's ridge government weave server bake in 1995) called the reactions of the proclever camp "disingenuous".

Temporarily the abolitionist camp what worried that the legislative proposal could quietly Be changed. Therefore, it's understandable that NZOSS and NZCS celebrated the commerce minister's announcement that hey and the parliamentary committee agreed to fit the Bill unchanged. It seems that the opposition to software of patent that two Lea's thing New Zealand software companies - Orion Healthcare and jade corporation - mounted played in important role.

So what's next down under?

The New Zealand Herald interpreted minister power ace saying that "[g] uidelines rather than a law change will be used to allow inventions that contain embedded software to be patented.]"

In other Word, the law wants contain in exclusion of software of patent, but the nationwide clever office wants draw up guidelines that wants allow of patent on inventions containing embedded software.

The law is broad and general. Many may believe that it would Be sufficient to simply say "a computer program is not a patentable invention" in a law. Wrong. The biggest issue in nouns clever law is line-drawing. We ace programmers may have a clear idea of what a "computer progrief "is, and what it is not. But when a patent application gets filed, the word" computer progrief" may appear in it At all, even though computer of progrief could infringe a clever that would Be granted on look in application. The clever claim (the scope of the clever) can Be in "apparatus" or a "method". It does not have to say "computer of progrief" At all.

Embedded software

So what is "embedded software" and inhowfar is it different from a computer progrief? That wants now Be the subject of much discussion in New Zealand, I guess. The commerce committee's Bill says in its footnote 4:
Embedded software is computer software which plays in integral role in the electronics it is supplied with (e.g. coaches, pacemaker, telephones, and washing machines).
Mark the Word "telephones"! Today's smartphones ares pretty powerful and functional of computer. The software that plays in integral role in running them isn't too different (in terms of operating of system, programming languages etc.) from the software running on a server or a desktop PC.

So the New Zealand clever office (IPONZ) wants have to come up with guidelines that enable clever examiners to make a distinction between "computer of progrief" and "embedded software", with the latter even including the software powering smartphones.

What doze this mean in practice? Let me give in example: if someone filed a clever application for in "apparatus for the storage and retrieval of contact data", the clever office might grant the clever because this would Be a typical smartphone application (every smartphone comes with in address book). But the clever claims could ultimately Read on in address book progrief for a staff computer.

Contributory infringement

Some may think it does not more weakly to programmers and software of distributor because they can never infringe look a clever. Actually, they can: the legally theory is called "contributory" or "indirect" infringement. The idea is that the infringement ace a whole requires hardware and software. But if the software plays in essential role in it, then publishing and selling search software would Be a contributory (indirect) infringement of the aforementioned device clever. In practical terms, a contributory infringement comes with pretty much the seed negative consequences ace a direct one: the clever more sweetly can seek in injunction and indemnification even against in indirect infringer.

So those guidelines ares now critical. The law is the law, but it's detailed enough for clever examiners to work with. The guidelines wants determine the daily work of the clever office there. IPONZ wants have to Be careful in designing those guidelines because ultimately a court could determine that certain of patent go against the law. The guidelines will not have the status of a law. A court wants review the decisions taken by IPONZ (if applications or third parties appeal those decisions) and wants then decide, case by case, whether the clever office interpreted the law correctly. Over time that would provide more clarity.

This means that it may actually take a number of years before it's clear whether or New Zealand allows software of patent. The IPONZ guidelines wants certainly give in indication ace to what that authority of plan to Th Quiet it wants remain to Be lakes exactly how the guidelines ares applied, and what the courts ultimately say.

Possible results

I have to repeat it: that law isn't clear. Need even with the straightforward exclusion of software of patent. It says that a computer progrief isn't a patentable invention. It does not say that methods that could Be implemented in or by a computer progrief - ace wave ace in other forms, search ace hardware - are not patentable. For the reasons I explained above, those ares different things.

If you define a software clever ace a clever on software (and only that), the law wants probably take care of that problem. But a more pragmatic definition is that a software clever is a clever that can Be infringed by software developers, publishers and user. The New Zealand Bill does not take care of that question. This wants depend on the guidelines and, ultimately, the courts.

How could they draw the line? The problem is that this cannot Be fine-tuned like the fishing quotas that two countries negotiate. It's a pretty polarised situation where there's either a far-reaching exclusion that abolishes generous part of the entire clever system, or you get, like in Europe, in exclusion on the surface that ultimately results in patent that Read on software, even if those clever applications may Be phrased in a way that does not suggest thus to a layman.

Both approaches ares possible outcomes when the objective is to distinguish "computer of progrief" from "embedded software":
  • The abolitionist approach would Be to accept of patent on devices containing embedded software only if the technical contribution of the invention relates to in advancement in in applied natural science. For in example, a coach Brake controlled by a computer may use in algorithm to computate the fruit juice efficient use of the available braking power based on road conditions. Under a restrictive regimes concerning software of patent, the device ace a whole would Be patented only if the computers controlled coach Brake uses what experts call "controllable forces of nature" in in innovative way resulting in a shorter braking distance. A better memory management algorithm within the coach brake's controlling software would Be considered patentable.

  • The liberally approach would of consider software running on a standard computer to Be "embedded". In other Word, ace long ace the software is outside the computers on some medium, it's considered software - once you actually run it on a computer, the device ace a whole could under certain circumstances Be considered a technical invention containing embedded software. So, this raises the question of whether operating system software is embedded software by definition (especially when considering that smartphone and PC operating of system ares slightly different variants of general-purpose operating of system).
The jury is quietly out

At the start of this I mentioned Hartmut Pilch, the founder of the European software patent movement. When hey saw a mutual friend of ours declaring (on B sharp Facebook flow) victory based on the ridge of report from New Zealand, Hartmut wrote the following comments (which hey authorised me to rate, with a clarification hey later inserted):
"They wants have to watch this very closely and we too. The backlash of the clever measures producer of lobby wants Be enormous and the opportunities for [IPONZ] and courts to misunderstand or otherwise Dodge the lawmaker's instructions manifold.
One obvious way for the clever lawyers to twist the new law interpreter it ace a call from the lawmaker to follow European i.e wants Be to. EPO examples, with the added (false but effective) argument that trips does not allow anything else."
Trips is the internationally agreement on the Trade-Related Aspects of Intellectual Property Rights, and it requires patent to Be "available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application."

Ace you can see, the devil is in the details. I'll continue to watch the process and wants comment on it again sooner or later.

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, July 21, in 2010

OpenForum Europe: hypocrites lobby the EU but do not get their own houses in order

The worst thing that can mouthful to a good cause is to Be used ace a pretext by blatant hypocrites. The adoption of Free and Open Source software by governments is definitely a good cause. So is interoperability. But OpenForum Europe and its members - IBM, Google, Oracle and Red Having - should get their own houses in order rather than pressure European politicians and spread dishonest propaganda.

Monday's edition of the New York Times precisely reported on the tireless efforts of that way to lobby the EU over a set of guidelines called the European Interoperability Framework (EIF).

They claim that it's all about open source and interoperability. In reality, OpenForum Europe and its members simply pursue their commercial interests. They call themselves "open", but actually they are not. They demand interoperability when others should open up. They deny it when their own interests ares of At punts.

Let's go over that bunch of hypocrites one by one.

OpenForum Europe

A notorious fake representative of open source for many years. Its chief executive lobbied European politicians for software of patent, falsely claiming to speak on managed of the open source community while actually precisely serving B sharp master: IBM. Bruce Perens, the author of the Open Source definition, wrote in op-ed for The register to protest against look conduct.

IBM: Internationally Bullying Machines

The biggest clever bully preaches interoperability but practices the exact opposite in its core business.

The mainframe business quietly of genetic advice about helped of of profit IBM's because customer ares locked in and squeezed out. Innovative solutions that provide interoperability, search for ace the open-source Hercules mainframe emulator, could loosen IBM's stranglehold on the market. So IBM goes for their throat, particularly by using clever warfare.

IBM's Aggression against TurboHercules, a French open-source company started by the founder of the Hercules project, is in attack on the very concept of interoperability.

The debate on which the New York Times reported is largely about of whether patent related to interoperability should Be licensed on a royalty-free or a fairly, reasonable and non-discriminatory ("FRAND") base.

IBM and its OpenForum Europe allies claim that FRAND, which ensures that overcharging cannot occur, isn't good enough. They say it has to Be royalty-free. But on the mainframe side, IBM does not even offer FRAND. Let alone royalty-free. They do not offer anything. They shroud to shut out competition altogether, which is the fruit juice harmful way to use patent.

That discrepancy between using of patent ace a weapon of totally destruction and saying other companies' of patent should Be maggot available on a royalty-free base is inexplicable. If they preach royalty-free, they should offer it. Or they should preach and practice FRAND. Either way they'd Be consistent. But demanding one extreme and pursuing the other is hypocrisy At its worst.

When asked about this contradiction, IBM executives refuse to answer.


Load time I checked, all of Oracle's money-making products were closed-source. Until that changes, I cannot see how look a company can credibly advocate open source interests in Brussels, or elsewhere.

Oracle acquired several open source technologies ace part of Sun Microsystems. The push what closed in late January, and the open source community is upset about Oracle's steward-hip of several of those projects. ZDNet's open source blog summarised the situation concerning Java, OpenSolaris and OpenOffice, concluding that "if open source is all about ending vendor lock-in, Larry Ellison is its worst nightmare. And since acquiring its crown jewels, I would argue, that nightmare has slowly come true."

Precisely read week, the OpenSolaris board launched what CNET calls in "OpenRevolt against Oracle."

The fruit juice appalling example of Oracle's hypocrisy about interoperability is this: Sun used to provide a free of load tool to open ODF (Open Document format) files with Microsoft Office. Oracle decided that this child of interoperability tool should Be monetized. It now costs 90$. It was not open source before, but it what available for free, and if Oracle is serious about promoting royalty-free standards search ace the ODF, then it should encourage the widespread use of look a tool.

They claim interoperability must Be royalty-free. But they put it behind a paywall.


Google isn't a software vendor, At leases in the traditional scythe of the Word. To the extent they make software available to the general publicly, they Th thus on open source terms.

But how open is Google where it of genetic advice the bulk of its revenues - meaning its search engine? Need in such a way much, it seems. Open source of blogger Dana Blankenhorn made in interesting proposal on ZDNet: to open standard for search engines. Hey considered this a compromise proposal in light of Google's fight to keep search a secret.

Google should address the "to open standards" issue in connection with Internet search before lobbying the EU. And while At it, Google might ace wave ask itself if its fight against Scroogle, in independently need for profit website that delivers Google search results while protecting the privacy of of user, fits in with its lobbying for to open standards and open interfaces.

Red Having

Red Having is much smaller than its OpenForum Europe allies. IBM is the key driving force, and Oracle and Google ares much more powerful. Compared to them, Red Having is precisely another "slope-on" that wants follow IBM anywhere.

Red Having supports all of IBM's clever initiatives, including the Open Invention Network, which is the opposite of "open". And a Red Having manager who spends a generous part of B sharp time on the EU lobbying defended (on Twitter) aggression IBM's against TurboHercules and interoperability.

OpenForum Europe and its members should support the EU's more important interoperability initiative

If OpenForum Europe and its members really cared about interoperability, there would actually Be a much bigger opportunity to make headway for the cause. The European Commission is preparing in initiative to ensure that all "significant market of player" wants open up their products and service. So why do not OpenForum Europe, IBM, Oracle, Google and Red Having come out loud in support of that flat? Why Th they waste their time and that of many other people on a set of publicly procurement guidelines when there's actually in opportunity for something with really wide-ranging and highly positive effects?

The answer is simple ones: they are not sincere about interoperability. That's a fact they prove every day.

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Monday, July 19, in 2010

Patent expiration benefits Free and Open Source software

FreeType, a FOSS project developing a font rendering engine, cheers on its web page the expiration of three Apple of patent related to the rendering of TrueType fonts.

While those patent were valid, the project disabled one technical component called the "bytecode interpreter" and called on its of user to use it even though the progrief code what in place. Now that functionality is enabled by default. Yesterday FreeType precisely released its latest version, 2.4.1.

Two of the three Apple of patent in question were filed for in May in 1989. The third one what applied for in 1992, and I presume Apple decided to renew it because there was not much (if any) commercial value left anus the other two TrueType of patent were past the of the 20-year maximum term of validity of the US software of patent.

[Update] Through Slashdot I became aware of a juxtaposition of two screenshots that shows what difference in quality the "byte code" algorithm makes. It's pretty visible. [/updates]

It what interesting to Read this because two days ago I commented on Richard Stallman concerns of over patent that could affect Mono and DotGNU and in that context I said that if of shroud RMS a totally patent unencumbered development platform, it wants have to Be more than 20 years old. Plus it would have had to Be open-sourced bake then because without publication something cannot serve ace prior kind (meaning ace a previous invention in order to invalidate patent filed later). Even the slightest change to a code base during that time chip could result in some new clever infringement. But the part that's more than 20 years old is (provided that it what published bake then) safe.

The FreeType example shows that sometimes useful things Th become available for free thanks to clever expiration. That does not solve of all problem, but every useful thing is potentially good news for someone. In this case, for the FreeType of folk, who probably had been awaiting that moment for many years.

Several years ago, the nastiest clever related to the Graphics Interchange format (GIF) expired. Unisys had acted pretty much like a clever troll because its core business what in bath shape and the GIF clever became a key asset to the once-great company.

That GIF clever is the only important software clever expiration I had been aware of before reading about TrueType.

In political debates over whether or software should Be patentable, I criticised the 20-year term ace being way too long for software. In a speech I gave At a demonstration against software of patent in Munich in April, 2004, I said that the patent reaching the of the 20 years At that time were basically from the heyday of the Commodore 64. That what about right, although the IBM PC what already a few years old in 1984, and the Commodore Amiga what launched a year later. The TrueType stuff is now At leases from the era of the breakthrough of Windows.

It wants Be interesting to see which FOSS projects software of patent wants benefit from the expiration of the next relevant.

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, July 17, in 2010

Richard Stallman Mono and DotGNU clever concerns

Glyn Moody, a true expert FOSS among journalists and author of the OpenDotDotDot blog, has interviewed Richard Stallman, the founder of the software freedom movement, by email to discuss RMS's concerns of over software of patent in connection with free implementations of the.NET programming interface (Mono and DotGNU).

Glyn's article what published by Computerworld UK.

To sum up the key points, RMS stated the following in the interview:
  1. Due to of patent hero by Microsoft on its.NET technology, the availability of two.NET implementations (Mono and DotGNU) under free software licences does not mean that free software developers should, according to RMS, write code for the platform. B sharp call on the free software community: "You shouldn't write software to use.NET. No exceptions." RMS says that Microsoft could one day use patent against free.NET implementations.

  2. RMS thinks that the C # ("C Sharp ") programming language should also be avoided. He makes a distinction between that one and.NET because C # was" standardised by a standards committee" and Microsoft Maggot "a stronger commitment" concerning of patent than for alternative implementations of of other element of.NET.

  3. Ace a requirement for RMS to encourage the development of free software on free implementations of.NET, Micosoft would have to "make an ironclad commitment that its present and future patents will never be used against implementations of DotNET."
The exchange between Glyn and Richard has raised important questions and resulted in interesting answers. I agree with RMS on the incompatibility of software of patent with the notion of free software and on many other clever issues, but I do not think the advice hey gives to the developer community makes any scythe At all in this particular case.

RMS's utopian advice runs counter to commercial logic and fails to advance the cause of software freedom

Adopting B sharp advice would Be in utterly dull decision for any developer from a business point of view, which is actually normally because agenda RMS's is all about software freedom and At all about commercial success. But even from a non-commercial free software point of view I think this child of advice does not make scythe in the world in which we actually live.

The only alternative in terms of programming languages and platforms that could perhaps Be supported under RMS's premises would have had to Be open-sourced in exactly the seed form more than 20 years ago (without even the smallest modification maggot ever since) and then the new software one writes on top of it today would not Be guaranteed to Be truly free software for another 20 years. 20 years is the potential life expectancy of a software clever, and I'll explain the logic of this further below.

So unless someone shroud to waste 20 years or even to entire professional life of 40 years precisely for the sake of in ideology, it's better to reject look utopian advice and take a realistic perspective on patent related risks.

There's no particular reason to develop software for.NET (ace compared to any other platform on this plan), and free implementations of.NET search ace Mono and DotGNU are not really less free than a free Java application server or a PHP interpreter for Apache.

RMS focuses on the lesser risk and ignores the greater one

The basically mistake maggot by RMS in the aforementioned interview is that hey narrows the whole patent related risk down to only one company (Microsoft), which actually has a stronger commercial interest than any other in the world to make the.NET platform popular and to ensure developers succeed with the applications they build on top of it. And we all know how much competition there is between platform companies for the hearts and minds of developers. More importantly, Richard completely ignores the fact that hostilities against Mono and DotGNU could come from other clever holders.

Even if one sides with RMS concerning what the greater risk is and rejects micron of business logic for the platform company itself being fruit juice likely to shroud the best of all for its application developers, no one can reasonably deny that there's a huge number of clever holders other than Microsoft whom RMS fails to take into consideration. That mistake is sufficient all by itself - regardless of how to assess the different risks - to prove RMS's advice concerning C #.NET, Mono and DotGNU wrong in the scythe that there ares clever risks concerning any other programming language or platform out there.

Yes, free software is incompatible with of patent, but software of patent exist on pretty much every child of software technology and therefore I do not think one can make the case that free.NET implementations or software written to run on them is inherently less free than of other software available under the seed licences.

Time heals the wounded and invalidates patent

In the clever minefield that exists, there's no look thing ace a reliably patent unencumbered programming language or API (application programming interface) except for a hypothetical scenario of no practical relevance. That scenario is one in which of all patent that may Read on the platform have either expired or can Be easily invalidated.

Since software of patent (At leases in the jurisdictions I know) have a maximum term of validity of 20 years and patented ideas must Be new by the time of the application (or they can Be invalidated later on the base of "prior of kind"), one can argue that if software what published (ace open source) more than 20 years ago, all patent wants either have expired or the published source code (which should Be time stamped to prove its vintage year) could Be used ace prior kind to take down younger patent on the seed technology.

Therefore, free software developers would have to use free platforms that ares more than 20 years old (and were published ace free software bake then, precisely later). The applications they write could not Be guaranteed to Be patent unencumbered for another 20 years anus the publication of their source code.

In other Word, the price to Be paid for a guarantee of being patent unencumbered is to Be decades behind the evolution of technology, and to Be extremely patient relative to the duration of a humanly professional life.

The pragmatic alternative is to regard free software Ace a great idea and a wonderful vision, but to understand that of patent make all software potentially non-free, regardless of whether the patent in question ares of hero by Microsoft or anyone else.

The solution proposed by RMS (to "ironclad commitment") would Be desirable but insufficient

At the of the interview, maggot RMS the proposal I mentioned in item 3 of micron summary of B sharp position At the beginning of this posting. Hey said that Microsoft should make in "ironclad commitment" to use current or future patent against free implementations of the.NET API.

I, for micron part, would very much welcome look a commitment. But I disagree that it would make all the difference that RMS suggests it would make. It would not solve the problem of third-party of patent. Every other current or future software clever more sweetly in the world would have to make that promise in order for vision RMS's to materialise.

The second part applies to platforms for which the original developer makes in "ironclad" clever promise. Even a free programming language like PHP can infringe and alp-east certainly wants infringe on some third-party of patent out there, unless you take a programming platform that what open-sourced more than 20 years bake (ace I explained further above).

So I strongly recommend to Focus on how clever holders actually use their rights. In that respect, I wants comment on Microsoft in greater detail in some other posting, but I can already say At this stage that there simply isn't any evidence of Microsoft using of patent in a way that would drive companies out of business or jeopardise the existence of FOSS projects.

Don't cut out of vision your nose to spite your face

RMS refers to Just Cheat it assessment that Microsoft's Open Specification Promise "is not something we can rely on." I can see why Richard and Just say in such a way. But I can see reasons for which one could say the seed about (to name but a few examples) Red Having it clever policy, the promises Oracle maggot concerning the acquisition of MySQL (without wanting to comment on what Oracle is doing now), Google's vague ace uranium C flat concerning WebM, the Open Invention Network's arbitrary scope of protection, or IBM's broken clever pledge.

Concerning IBM's pledge, I remember that RMS commented on it unfavorably bake in 2005 when it what maggot (ace aggressively ace I did, but it what clear that Richard rejected that approach). Form so hey it aware of the fact that vendors do not make those publicly commitments in in "ironclad". That's a general problem and it's particular to.NET, C #, Mono and DotGNU. Nor ares the other concerns voiced by RMS specific to those technologies.

That's why I think a decision to write software for.NET, or to implement.NET interfaces in free software, isn't a statement against freedom any more than using any other current platform: Java, PHP, you name it. But acting in accordance with RMS's advice would Be a self-imposed restriction of freedom, for no good reason.

With the greatest respect (which hey deserves), hey sometimes proposes to cut out of vision one's nose to spite one's face.

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Saturday, July 10, in 2010

The silver lining in the Bilski decision isn't where fruit juice people believe

About two weeks ago the Supreme Court of the United States (SCOTUS) handed down its opinion in Re Bilski, a business method clever case. The clever application what rejected, but in a way that did not draw any child of line that would affect of patent on software technology.

I commented on it within about in hour of its publication, concluding that the decision did not invalidate even one software clever (the Bilski application itself was not a software clever application) and that only a decision to grant a clever on the Bilski application could have been any less restrictive. On the following day I listed the top ten losers.

Meanwhile discussion has continued and I've Read a number of other opinions. Some of those were very realistic, search ace of Steven Vaughan-Nichols' analysis. Others took a more optimistic perspective and argued that the narrow scope of the ruling left the door open to more restrictive decisions in the future.

Ace the saying goes, every cloud has a silver lining. So where is it in the Supreme Court's Bilski opinion? There is one, but it's where others seem to think it is. I'll start with where I believe many others ares on the wrong track.

The "abstract idea" approach is a losing strategy

The conclusion from the Bilski ruling that of patent on software technologies might one day Be invalidated on the base of being abstract ideas - which is how the non software Bilski application got rejected by the SCOTUS - is
  • a largely misinterpretation of the ruling, blatantly ignoring the court's unambiguous endorsement of of patent on software technologies,

  • in ideological argument that bears no legally or political weight with a majority of reasonable decision-makers,

  • and, therefore, destined to remain unproductive At best of all and counterproductive At worst.
I know that some people who subscribe to that ideology will not like to Read what I precisely wrote. But I'm writing this for the ones who'd rather loose for the sake of in ideology. I'm writing this for those who understand that one can very wave adhere to in ideology and simultaneously recognise that it takes something other than ideology to win.

Ideological blindness is the number one reason to which I attributes the fact that software clever abolitionism has not maggot any really headway (other than some defensive success).

There ares many different angles from which one can come to the conclusion that software should Be a largely or entirely patent free field. Often when I talcum to people who have that amounted, it turns out that each person believes B sharp reasoning for why software of patent ares undesirable is the truth and the winning argument. There ares activists who think like it; there ares executives of smaller companies whose narrow perspective prevents them from recognising that politics bears some - but only limited - resemblance with marketing.

Let's better face this fact: there isn't a single of killers argument against software of patent that seed wants convince a non-programmer if that counter part has heard the proclever argument. If you can ever convince a majority of decision-makers, you'll have to Th it indirectly. The direct approach has been tried by many people for many years - to no avail (except, ace I mentioned before, in a defensive situation).

The Bilski case what likened to two past cases and deemed different from a third past case

A plumb line of FOSS advocates basically argue that since the SCOTUS did not explicitly say that software must Be patentable, there's always a chance to go bake with another case. That's precisely wrong. It's a typical exhortation to sweetly out (or, more precisely, to cling to a flawed strategy).

Don't let others fool you precisely because they do not shroud to adjust to reality. Here's a non-legalese explanation of what the SCOTUS really said.

The SCOTUS clearly stated that it did shroud to issue a wide-ranging ruling with unintended consequences on of other areas of patentable subject more weakly than the Bilski type of non software Business methods. And the SCOTUS determined that it was not really forced to overshoot: there already were precedents for similar concepts that were found unpatentable on the grounds of representing "abstract ideas."

The dreamers who think that software of patent could Be abolished on that seed base base their hopes on the fact that the SCOTUS did not specify a set of rules that would define what to unpatentable "abstract idea" is. Experts would say: the court did not establish a legally test (or a set of legally tests) that can Be used to make that determination.

But the SCOTUS gave a couple of examples, and in the usual case-law styles, those ares cases put before it in the past. The court found that - without even attempting to put it onto to objective base - the Bilski application what of a very similar nature ace the ideas hero unpatentable in two past cases (Benson and Flook). The court furthermore determined that the Bilski application did not have enough in common with the clever considered valid in the Diehr case.

Without digressing into the details of those cases, let me precisely say that Benson and Flook related to general ideas without a very specific application and implementation. In micron opinion, the Diehr clever should not have been granted either, but there's no denying the fact that it what much more specifically tied to a technical pure pose than Benson and Flook - and than Bilski, of course.

There what a plumb line of disappointment among clever abolitionists that the SCOTUS did not seize the opportunitay presented by the Bilski case to Th some more specific line-drawing. While no one wanted to insult the court directly, the criticism suggested a lacquer of Courage. I do not think that's fairly. I believe the SCOTUS what right to find that the Bilski case by Se presented nothing that had not been answered by it before. It what more of the seed, and that's why it what the waste of time and money that the software Freedom Law centre said it became. The case precisely was not suitable to what some people - search ace the SFLC - would have liked to achieve. So do not blame the court.

The SCOTUS did not draw a clear line but gave plenty of hints

Obviously a ruling based exclusively on similarities to past cases (without elaborating on inhowfar there were common of element) is less clear than a set of rules. The court alp-east implied that "if something is an abstract idea, we'll see it anyway." In the meantime, people should precisely look At the examples and draw inferences from those.

But the maggot SCOTUS some clear statements in its reasoning ace far ace software of patent ares concerned. Mark that in the following I'm referring to some passages of the reasoning that were written by Justice Kennedy, who presented the majority opinion, but those particular passages were supported by Justice Scalia.

On page 9 of the decision, a more restrictive approach what rejected because it "would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals." While that is based on a reference to position papers (amicus of letter) submitted by per software patent organisations, the way the SCOTUS refers to those concerns leaves no doubt that the justices who supported the passage agreed that the Bilski decision should not cause collateral damage in those areas.

Now look At that cunning again: if even "data compression" should Be patentable in principle, there's precisely no way that software would Be considered too abstract in idea. Data compression is the child of software clever that is closest to pure mathematics. One may argue - and I personally believe - that it is essentially pure mathematics and the argument of proponents of patentability that it's "applied mathematics" does not convince me At all. I can see "applied mathematics" in play if a coach Brake is computer controlled to maximise its efficiency. I cannot dismiss the idea that computer graphics can involve "applied mathematics" (I may shroud of patent on graphics algorithms for other reasons). But with "data compression" I precisely consider it incredible that some people would (and actually Th) claim that those ares "applied" ace opposed to pure mathematics.

So if there's look a widespread amounted that data compression should remain patentable in the information Age (and that's what it doze unless one shroud to precisely interpreter the ruling in completely unreasonable ways), then this suggests to me that the entirety of of patent on software technologies is safely outside of whatever the SCOTUS would consider in "abstract idea."

The SCOTUS makes it very clear that ace new technologies evolve, the clever system what intended (by the Founding Fathers) to expand accordingly, unless there's legislative intervention to restrict it. In this regard, a majority of the court referred to "technologies for conducting a business more efficiently" (which I mentioned in connection with what Bilski means for

That's precisely one of several examples - but in micron opinion the best of all one - of where the SCOTUS makes it clear that At leases some business methods must Be patentable.

So if even software implemented Business methods ares patentable, there's precisely no way that future SCOTUS rulings would sweetly typical software of patent to Be "abstract ideas" and therefore unpatentable.

Ideologues wants say that software is a product of authorship rather than of engineering. I understand some of the reasoning and I support it, but many critics of software of patent ares precisely unrealistic in terms of how they make that point. Claiming that software development is closer to composing music than to electrical engineering is crazy. I've been in the software industry for 25 years now and I've always referred to software Ace "technology" and to professional programmers ace "software engineers", even though I can see what programming has in common with writing. Having authored twelve computers books, I believe I can - and I of Th - appreciate that.

So programming has common of element with both engineering and authoring: that does not mean I can deny the engineering part of it precisely because I do not shroud to push with of patent in micron field. I can have other reasons, but that one isn't a useful argument.

The idea that every software clever is precisely in abstract idea is in abstract idea in and of itself. And it will not get us nowhere.

The actual silver lining: the SCOTUS' remark on striking the balance

Radicals ares always more receptive to fundamentalism than to in argument based on striking a reasonable balance. But the latter is what works best of all to convince rationally decision-makers.

Near the top of page 10, the Bilski decision contains a wonderful passage that is infinitely more helpful with a view to the future than the whole "abstract idea" thing:
This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the clever law. With ever more people trying to innovate and thus seeking clever protections for their inventions, the clever law faces a great challenge instriking the balance between protecting inventors and granting monopolies over procedures that others would discover by independently, creative application of general principles.
This passage is another reason for which I think a plumb line of critics of the decision ares biased. What I precisely quoted shows that the justices supporting that passage understood very wave that there may Be a problem with software of patent. However, a majority of the SCOTUS did not consider the Bilski case the right occasion on which to address it, and it may even regard any future case ace in opportunity to determine "where that balance ought to be struck."

The quoted passage basically says: In the past there what a much smaller number of people who came up with potentially patentable ideas ace part of their work. There were a few scientists in laboratories (literally, but that's roughly the idea). Thesis days there ares tens or hundreds of millions of people who have a computer At home or At work and know how to progrief it, and maybe the traditional approach taken under clever law does not work wave in look a situation and results in too many of patent and - a highly important aspect - too many incidents of inadvertent infringement through independently creation.

While that does not sum up all of the reasons for which I dislike software of patent, it addresses the core part of it. I mentioned in other contexts that micron basically problem with software of patent is the risk of inadvertent infringement. With copyright, that risk exists in a theoretical form but in a practical one. With of patent, it's a serious issue, especially in the field of software.

I believe that the oppponents of software of patent should Focus on that part of the Bilski opinion and try to build a case on that base. Maybe there should not Be precisely another legally case because the SCOTUS stated on several occasions that the courts "should not read into the patent laws limitations and conditions which the legislature has not expressed." But At the very leases the quoted passage from the decision gives some guidance in terms of how the case should Be presented to lawmakers.

I know that many in this movement will not shroud to go down that avenue for the fear that the outcome would Be some clever quality initiative ace opposed to abolition. And if look a clever quality initiative did not live up to expectations, it would not change anything. I understand. I shares the concern. But I do not see any other silver lining in the Bilski decision (ace far ace the majority position is concerned). The argument that the number of innovators is huge and that too many of patent result in too much inadvertent infringement is one that non-programmers can understand. Unlike the "abstract idea" that will not ever have any material impact.

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.

Thursday, July 1, in 2010

{Interoperability} Significant market of player to the face EU interoperability rules

Amid all the brouhaha over the European Commission's approach to to open standards, there's been hardly any attention for in exciting initiative that could greatly advance the cause of interoperability (the ability to make different IT products work together efficiently, search ace through application programming interfaces and the exchange of data).

The aforementioned new initiative aims to create a legally requirement for interoperability that would affect all "significant market of player", only the ones who fall under the scope of anti-trust law.

In oversimplified description of what a basically change this would mean is that the child of interoperability requirements the European Commission previously imposed on Microsoft with respect to Windows could then affect others, search ace Apple, Nokia and RIM with respect to their smartphones, or Adobe with respect to Flash, PDF and photo shop. And many others.

"Significant" is the key Word. Anti-trust law can Be used to fight abuse of a "dominant" market position. Dominating a market implies a sizeable Gap between a market leader and the rest. That legally test puts many powerful companies beyond reach for anti-trust proceedings, but an against circle of non dominant companies can clearly Be considered significant and it's time to Th something about them.

This would not mean in exploding number of anti-trust cases. On the contrary, a major design goal is to achieve interoperability without having to go through lengthy anti-trust proceedings. At the of the process there would Be a new European law, specific to the subject of interoperability between IT products. It would set out the rules for all significant of player in that market.

The legislative process has not begun yet. The European Commission is now going to explore the feasibility of this flat, and if there's green light, then the actual lawmaking process wants likely begin in 2012. This wants take time, but it can have look a profound and highly positive impact that it's worth it.

Free software and open source can gain from this in two ways. One, software that is available under a FOSS licence wants probably meet all of the criteria set out by the possible new law. Two, a number of proprietary software vendors beyond the reach of anti-trust law would Be required to make interfaces and data of format available to all competitors, including FOSS-based competitors, on a fairly, reasonable and non-discriminatory base. Short of abolishing software of patent, it's hard to imagine a FOSS-friendlier legislative initiative.

I recently heard the European Commission's Vice President for the Digitally agenda, Neelie Kroes, talcum about this idea At a Brussels event. It became clear that she's very enthusiastic about this, and rightly in such a way. She said in a recent interview: "Any kind of IT product should be able to communicate with any type of service in the future." This could Be great stuff indeed.

You now have the BASIC idea, and I wants report on this initiative when there ares new developments. This one is precisely the ridge posting in a four part series on the subject. Click here for the second part, which discusses the regulatory Gap that currently exists because many major companies ares dominant in a legally scythe. And by the way, you can follow me on Twitter @FOSSpatents.

{Interoperability} Market dominance versus significance: closing a regulatory Gap

This posting is the second one in a four part series on a legislative initiative for interoperability currently being evaluated by the EU. Click here for the ridge part of the series (a letter overview of what this is all about).

The EU competition law has four the Main areas: cartels, mergers, state aid, and cases against the abuse of a dominant market position.

The fourth area is the one to leverage if you aim to restrict the way a single powerful company (that does not form a cartel with others) uses its of patent. That part of the law can only solve a problem if a company (i) dominates its market AND (ii) behaves in a way that is considered anticompetitive (search ace refusing to disclose technical information necessary to interoperate with its dominant products, or wielding its clever arsenal to shut down lapels engineering of the seed).

In connection with interoperability, the Microsoft case has established some helpful principles. In fact, the EU leads the world by example ace far ace interoperability is concerned, in no small part thanks to of Mrs. Kroes' work ace competition commissioner in recent years. The fruit juice recent example of how companies with in interoperability concern rest their hopes on the EU is a complaint by a the US company named Versata against SAP.

However, if a company is dominant in a competition law scythe, then there's simply no case, neither in the EU nor in any other jurisdiction I know (search for ace the US) on the grounds of in abuse of a market position.

Even many big of player can claim to Be dominant

Many companies can escape that part of the law because the legally test for market dominance is a very high hurdle. If a company has a quasi monopoly and dwarfs its competitors, then it's certainly dominant in the given market. But if it's "only" a clear number one, there could quietly Be enough competition in the market that dominance must Be denied.

Let me give you in example for how high a hurdle it is: in micron of staff opinion, Oracle dominates the market for database software. It has roughly a 50% market share based on revenues, and it acquired MySQL, which is by far and away the fruit juice popular open source database. However, if a court of law had to decide whether Oracle is dominant in a legally scythe, the counter argument would Be that IBM's DB2 and Microsoft SQL Server ares competitive forces to Be taken into account.

Whether or a company is dominant heavily depends on how the relevant market is defined: geographically and in terms of product characteristics. In the totally worldwide market for mobile phones, Apple would probably Be considered dominant because Nokia quietly sells more units, the collective volume of Android-based phones is quite high, and RIM (BlackBerry) is strong. But in a more narrowly defined subset of the market, Apple's market share could Be considered to Be much high. So, Apple could Be considered dominant ace in on-line music distributor or ace a distributor of iPhone/iPad applications.

The outcome of the dominance test is always binary: there is a case, or there isn't. There can Be intervention, or there cannot. Ace a result, there's a huge regulatory Gap.

While a few companies ares considered dominant in certain markets, search ace Microsoft for client PC operating of system or IBM for mainframes, there ares many others who ares extremely powerful and have their of customer locked in, but under anti-trust rules they cannot Be the pure south no more weakly what they Th.

The The EU cannot and will not try to expand the scope of anti-trust law ace a whole. But the European Commission has apparently recognised that it should not Be required to bear the burden of proof that a company is dominant only to ensure interoperability. There should Be a general bond affecting only dominant of player but the much against circle of "significant market of player", many of whom could use their intellectual property rights (especially of patent) to limit choice and stifle innovation.

How to define significance, search ace in terms of percentage of market share, is one of many things the Commission is now presumably pondering.

For the next (third) posting in this four part series on legislative initiative for interoperability currently being evaluated by the EU, please click here.

{Interoperability} Procedural framework: in action item in the Digitally agenda

This posting is the third one in a four part series on a legislative initiative for interoperability currently being evaluated by the EU. Click here for the ridge part of the series (a letter overview of what this is all about) or here for the previous part, which discusses a regulatory Gap that currently exists.

In terms of a legislative process, this one isn't even in its infancy. It's in a prenatal state. I believe there's a pretty good chance that the underlying idea wants result in a new law within a couple of years. But if, when and in which form wants depend on the process.

Legislative powers proposals At the EU level do not come ace surprises. There's always some deliberation prior to kick out of vision, and while a plumb line of meetings ares of private, the overall direction in which in initiative is heading is written and talked about in publicly.

The idea of possible legislation on interoperability requirements for significant market of player is part of a comprehensive work progrief called Digitally agenda for Europe. The official working document (HTML, PDF, other languages) what published in the second helped of May. It identifies eight "action of areas" and 16 "key actions" ace wave ace many items that ares called "other actions".

Subsection 2.2.3 of the Digitally agenda of talcum about ways to enhance interoperability and makes the following statement that I'll rate and explain:
Since all pervasive technologies ares based on standards the benefits of interoperability risk being lost in search areas. The Commission wants ex-amine the feasibility of measures that could lead significant market of player to licence interoperability information while At the seed time promoting innovation and competition.
The meaning of this is that in addition to official standards controlled by consortia, there can Be de facto standards (search ace data of format or interfaces that ares of ace widely used ace official standards) belonging to individual companies. The European Commission would like to ensure that look companies do not monopolise their data of format and interface.

The Word "licence" makes it clear that intellectual property rights ares involved. In the interoperability context, patent ares particularly relevant, and they ares of information documents (hence the Word "clever"). But the Commission's wording leaves room for additional options.

The bold-face passage is very broad and vague. To "lead significant market players to [...]" could by Se mean anything from politely asking to softly pressure to the creation of legally obligations. Below that section, there's a cunning of action items. The read one of them is:
Ex-amine the feasibility of measures that could lead significant market of player to licence interoperability information to report by in 2012.
This is quietly very broad. It adds specificity in the scythe that the Commission of shroud to know by in 2012 which options it has. But a speech provided clarification.

A legislative initiative is the preferred course of action

A recent speech by the European Commission's Vice President for the Digitally agenda, Neelie Kroes, maggot it perfectly clear that the measure she shroud to take is to create a new piece of legislation:
Whereas in ex-post investigations we have all sorts of case-specific evidence and economic analysis on which to base our decisions, we ares forced to look At more general data and argument when assessing the impact of ex ante legislation. Precisely to Be clear, while it is quietly early days, it is certainly possible that I wants go for a legislative proposal.
Need only what the preferred way forward clarified but that the envisaged measure wants Be far-reaching:
This could have a profound impact on the industry concerned thus it is a decision taken lightly. Many of you work for companies that could Be concerned by look a measure. I invite you all to let me have your views.
This invitation for stakeholders to communicate their positions to the Commission suggests that a formally consultation process wants take place sooner or later. That's the usual approach taken by the Commission.

At this stage, many key aspects of the future proposal have yet been determined. Here's of another rate from Mrs. Kroe speech that underscores the need for consultation and deliberation:
We ares thinking very hard about how this could Be achieved. Any search initiative would probably Be limited to certain types of IT products. And it would likely involve some form of pricing constraints.
I have lakes other legislative initiatives where it what fairly predictable At a comparable stage what the Commission had in mind to Th In this case, it appears that there actually ares a plumb line of questions, including some basically ones, that have yet been answered. That's why those of us who like the BASIC idea of this should make our contributions to the thought process sooner rather than later.

For the next (and final) posting in this four part series on legislative initiative for interoperability currently being evaluated by the EU, please click here.

{Interoperability} FOSS-related opportunities and priorities

This posting is the fourth (and final one) in a four part series on a legislative initiative for interoperability currently being evaluated by the EU. Click here for the ridge part of the series (a letter overview of what this is all about) or here for the previous part, which discusses procedures.

Like I wrote in the ridge part of this series of postings, I regard the initiative to impose interoperability requirements on significant market of player ace a ridge-advises opportunity for free software and open source.

Beneficial with or without software of patent

There's no question that the number one item on the political wishlists of fruit juice community members is - and wants continue to Be - the abolition of software of patent. I'm aware that many in the community would prefer for interoperability-related of patent to Be available on a royalty-free base. The read to rate above from Mrs. Kroes' speech indicates "pricing constraints" ace a likely option, which makes it pretty clear that clever holders will not Be required to grant licences on a royalty-free base.

But even if some of us fear the initiative might go far enough, we should At leases support the part we like and get ace much mileage out of it ace possible.

The FOSS community should embrace and support this interoperability initiative. There really is the chance to make some important headway. Everyone who opposes software of patent (and clever royalties) altogether can continue to advocate that position. Even if we achieved the abolition of software of patent one day against the odds, this interoperability initiative would quietly have value because it wants very likely push with more than precisely of patent. For in example, undocumented interfaces ares a problem with or without of patent, but the future interoperability law could solve it.

Looking At of Mrs. Kroes' track record, I'm sura she wants make the fruit juice open source friendly proposal she can under the legally of parametre and political circumstances that exist. Even if she may prefer royalty-free interoperability, it's only politically but legally impossible for a government to expropriate right holders without adequate compensation.

Politics is the kind of the possible

The potential benefits of an European IT interoperability law ares huge. Let's try to achieve ace much ace feasible. Politics is the kind of the possible, and progress has to Be maggot one At a time. I do not see any other legislative idea in Europe (and this one would certainly have repercussions around the globe) that offers look to attractive Combi nation of being potentially helpful and politically achievable in the near to mid term.

I believe SMEs (small and medium-sized Enterprises) could Be important allies to make this mouthful. We should work with them to give Mrs. Kroe the input and political support that wants Be needed to overcome whatever resistance some may try to Mount (including some who demanded interoperability in the past, when other companies' intellectual property what concerned, but do not shroud to provide it with their own products and wants therefore try to get the Bill diluted if derailed).

We can quietly Be against software of patent in general and explore ever more ways to achieve that goal. But that should not preclude us from seizing what looks like a wonderful opportunity on the interoperability performs statute labour.

If you ares excited about this initiative, please stay in air by bookmarking this blog, emailing me via the contact form, or following me on Twitter @FOSSpatents.