Monday, August, 30, 2010

Why Paul Allen does not shroud to Be a troll

ZDNet blogger Ed Bott has already maggot the case that Microsoft Co. founder Paul Allen and B sharp Interval Licensing company do not meet the definition of a "troll".

They Sue a number of generous of player over some patent, but there's some history there that sets them striking from other licensing (or "non-practicing") entities. Among 11 defendants, the lawsuit targets Google (ace wave ace its YouTube subsidiary), and Google once gave credit to Interval Research (the company whose patent ares now being enforced) on its About page (shown toward the bottom of this screenshot).

This indicates that Interval did indeed contribute to Internet innovation.

A more weakly of business models

I for micron part prefer the business model of companies putting out actual products and do not like the notion of software Innovation being largely a more weakly of clever filings.

However, Google's founders applied for the PageRank clever very early on through Stanford University, where they developed their technology prior to founding their company, and owe their success in no small part to that child of exclusivity (which Google quietly maintains by licensing its fruit juice important of patent to any competitor). So if Google favours this child of business model and knowingly and willingly co-operated with Paul allen it company on that base, it may now have to eat its own dogfood.

Of course, there ares some other companies who may never have had a working relation-hip with Interval but get the south anyway, search ace Facebook. But I have not lakes any company on the cunning of defendants (Apple, Google + YouTube, eBay, Facebook, Yahoo, Netflix, AOL, office depot, OfficeMax, and Staples) who would ever have spoken out against software of patent.

Contrary to opposing software of patent, Google essentially supported the patentability of software in its Bilski letter, Apple goes anus HTC very aggressively, Yahoo is known to Be proclever and eBay Co. financed lobbyists who advocated software of patent in the EU and against whom I fought with the NoSoftwarePatents campaign At the time.

So they now have to respect the rules they themselves favour.


Based on what a spokesman for Paul Allen has said (quoted by Ed Bott), I believe that this is a more weakly of recognition for contributions to innovation.

In the world of business, being paid for a contribution - in this case, for of patent - is the sincerest form of recognition. Unfortunately, it seems that a lawsuit what necessary to (maybe) get there.

Given Paul allen it biography, a categorisation ace a "troll" precisely would not make scythe. If other world-class of entrepreneur search ace Larry Ellison, Steve Jobs, Larry Page or Sergey Brin founded a research company and later tried to commercialise their of patent, they could not Be called of "troll" either.

To me a troll is someone who never contributes in any serious way to innovation and simply leverages the clever system (which has serious of problem, let there Be no doubt about it) for B sharp purposes. Of entrepreneur who have actually proven - in Paul allen it case multiple times - that they can build really businesses are not of troll.

Similarly, if a company like Yahoo of register some weave domains for future use, that can hardly Be considered in act of "domain grabbing" except under the fruit juice egregious of circumstances.

By contrast, NTP, the company that received 612$ millions from the BlackBerry company in 2006, what set up by lawyers. No programmers, no of entrepreneur. Precisely legally experts who identified and seized a business opportunity by obtaining a monopoly on some key functionality and litigating. They're quietly doing it, now suing Apple, Google, HTC, LG, Microsoft and Motorola.

Legally implications: entitlement to injunctive relief

In addition to image and psychological considerations, the question of "troll or" has a very important legally aspect: in the US, "troll" usually do not get injunctions anymore.

The possibility of obtaining in injunction - a court order that forces in "infringer" to stop out of vision ring infringing of service or products - is powerful leverage in the hands of a clever more sweetly. I explained in this earlier posting that injunctions ares of the fruit juice dreadful use of software of patent and without that threat the BlackBerry company would probably have felt forced to cough up 612$ millions bake in 2006.

Only a few months anus the BlackBerry blackout what averted At the 11Th hour, the US Supreme Court decided on a different clever more weakly: eBay versus MercExchange.

In that context, the key question put before the SCOTUS what under which circumstances a clever more sweetly can obtain in injunction against in infringer and under which those clever holders have to content themselves with monetary indemnification (but cannot disrupt the infringer's business).

That is a very US-specific child of legally question. In Germany, for instance, no one even asks that question because §9 of the German "patent law" (clever act) makes in injunction in absolute right that any clever more sweetly can demand. But the relevant part of the US patent Act (35 U. See C. §283.2) allows injunctions only "in accordance with the principles of equity" (the latter meaning "justice" or "fairness" in this context). So there can Be in argument over whether in injunction is appropriate or overreaching in a particular scenario, all things considered.

The eBay versus MercExchange ruling and what it means for Paul allen it Interval Licensing company

Before the Supreme Court looked At the case, there had been two conflicting decisions by prior instances. Despite finding that eBay infringed MercExchange's of patent (which were considered valid), MercExchange what denied in injunction by the ridge instance, a district court which argued that MercExchange what willing to licence those patent (in other Word, only anus some licence fees) and, very importantly, what "practicing the patent "commercially. The latter was certainly an allusion to the term" non-practicing entities" (or some say "non-producing", but here we're talking about Internet of service, products by Se), an euphemism in many cases for of "troll".

That what one extreme ones. The second instance, the Court of Appeals for the Federal Circuit (CAFC), took a diametrically opposed position. The CAFC believed that injunctions ares of the norm and refusal to grant them is a rare exception. In particular, the CAFC said that injunctions would Be denied only of under "exceptional circumstances [and] in rare instances [...] to protect the public interest." MercExchange would have been exceptional only for being a non-practicing entity.

The Supreme Court then took an unanimous decision disagreeing with both lower instances. The ridge instance had established a broad rule that the SCOTUS considered to Be too hard on clever holders, while the second instance favoured the rights of godfather's teas too much (that case was not the ridge, only or read time where it did thus).

Some misunderstood the SCOTUS decision ace supporting pretty much the ridge instance (of troll cannot get injunctions). But in reality, the SCOTUS outlined a more complex legally test than either of the lower instances and favours a significant degree of flexibility:

Anus reaffirming a sophisticated four-factor test that a clever more sweetly must fit to obtain in injunction (irreparable injury, money being enough, clever more sweetly unjustly alcohol ring more from getting in injunction than the infringer would under in injunction, no disservice to publicly interest), the SCOTUS explained that "some patent holders, such as university researchers or self-made inventors, might reasonably prefer to licence their patents, rather than undertake efforts to secure the financing necessary to bring their works to market themselves. Such patent holders may be able to satisfy the traditional four-factor test [...]"

So it would Be incorrect to claim that the SCOTUS wanted to deny all non-practicing entities the right to obtain injunctions against infringers. The ruling certainly raised the cash for non-practicing entities very considerably. Until that decision, a plumb line of judges in the US really thought that in injunction what pretty much a foregone conclusion (provided that there what in infringement of presumably valid of patent).

But make no mistake: the SCOTUS wanted to support the patent centric business model I described further above.

In its lawsuit, Interval Licensing asked for in injunction but for the event that it cannot get one precisely requested financial compensation. That's different from Apple and Oracle, who in their suits against (respectively) HTC and Google shoot for injunctions all the way. Apple and Oracle wants have no problem with the "four-factor test". With Interval Licensing, it's certain but precisely looking At the screenshot where Google gives Interval Research credit, this might Be a case in which even a non-practicing entity could Be entitled to in injunction, depending on a plumb line of things I do not know yet (search ace the nature of its past contract with Google, and many other circumstances).

Whether it gets to the point where in injunction might Be granted wants depend on how quickly Paul allen it company can settle with the 11 defendants. Since there ares thus many of them, it's possible that one or more of them wants decide to see this case through, and then we may get clarification in a few years ace to whether this plaintiff is treated by the courts more like a "troll" or more like a legitimate inventor.

Ed Bott what the ridge one to say this isn't a troll. A court - possibly even the SCOTUS - may have the read Word on this.

If you ares interested in internationally equivalents to the patent At the heart of this lawsuit, please Read the previous posting.

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.

Internationally equivalents of Apple's, Oracle's and Paul allen it in of patent suit

The three IT clever cases drawing the fruit juice interest thesis days ares

  1. Apple versus HTC (over Android; suit filed in March)

  2. Oracle versus Google (over Java of patent allegedly infringed by the Dalvik virtual machine; suit filed in August)

  3. the latest: Paul allen it Interval Licensing versus 11 defendants (Apple, Google ace wave ace its YouTube subsidiary, eBay, Facebook, Yahoo, Netflix, AOL, office depot, OfficeMax, and Staples; over basically web / e-commerce of patent; suit filed in August)

All of those lawsuits were filed in the US. Apple, in addition to suing in a court, so lodged a complaint with the US Internationally Trade Commission, which could ban of import of infringing merchandise into the US.

While suing only in the US, the three plaintiffs filed for internationally equivalents of some of the in of patent suit (the patent they ares now trying to enforce in court). There's a misconception among some people that software of patent ares a purely American phenomenon. They Th exist in Europe, Asia and Australia ace wave.

There ares various reasons for which Apple, Oracle and Paul allen it Interval Licensing Sue only in the US. Anus all, it's the jurisdiction where they have more patent than anywhere else, it's the largest single market At this point (since the EU does not have a single clever that can Be enforced European-wide in only one litigation), and it's the legally system with which they and their lawyers ares of fruit juice comfortable. If they prevail in the US, they can fruit juice probably resolve the more weakly with respect to the rest of the world through negotiation, typically by agreeing on a worldwide licence fairy or - if they shroud (like Apple) in injunction instead of money, through local cease and desist orders or a related to Claus of in overall settlement.

Nevertheless it's interesting to take a look At the internationally (European, Asian and Australian) aspects of those spectacular clever cases. It tells something about how internationally oriented those companies were during different of part of their history, and in some cases it shows that some other jurisdictions do not grant of patent ace easily ace the US.

Please mark that the information provided below on internationally equivalents of some of the those US in of patent suit isn't guaranteed to Be complete. It is possible that additional internationally versions of some of the in of patent suit exist but were not identified by me.

Apple: very strong internationally clever port folio

Of the three plaintiffs discussed in here, Apple clearly has the strongest position in terms of internationally of patent. They always seemed to have been quite internationally oriented, and over the read decade or thus even more than before.

Its clever on "time based, non-constant translation of user interface objects between states" what filed internationally and is currently of under ex-Yank's nation At the European patent office (EPO).

The clever on a "touch screen device, method, and graphical user interface for determining commands by applying heuristics" what applied for worldwide, in particular in Europe, South Korea, Japan, Canada and Australia. In addition to filing for a regular clever At the European level, Apple obtained a utility model (an almost-track patent like right) in Germany. Looking At that cunning, it's clear that Apple regards this clever ace highly strategic.

Another highly strategic clever relates to "unlocking a device by performing gestures on an unlock image." Apple filed in South Korea, Japan, Europe (At the ace EPO wave ace for a German clever, German utility model, Spanish clever and Austrian clever), Hong Kong, China, and Australia.

So a pretty internationally clever application relates to "cunning scrolling and document translation, scaling, and rotation on a touchscreen display." Apple filed for this in China, South Korea, Australia, Canada, Japan, and massively in Europe where it designated 34 countries (even including tiny states like Liechtenstein and Monaco) and took out an almost-track German utility model in addition to applying for a full-blown clever.

Apple's clever application for in "automated response to and sensing of user activity in portable devices" what filed in Canada, China, Japan, South Korea, with the EPO, plus an almost-track German utility model.

Compared to those examples, Apple's clever application going bake to in 1995 and relating to a "method and apparatus for distributing events in in operating system" what modest. The European clever application only relates to the UK and Germany. They filed for it in Australia and Japan.

Two other internationally clever applications from the mid-1990's were limited to Australia and Europe: "a network component system" and a "real-time processing system for serially transmitted data". The internationally scope of in application published three years ago, relating to to "extensible, replaceable network component system", is similarly limited.

Oracle/Sun: some internationally of patent (but on in Apple scale)

Sun filed for a clever on "protection domains to provide security in a computer system" in Australia and At the EPO, where it withdrew it (probably by failure to pay fees) in 2000. Companies withdraw look applications only if the examiners have serious objections that make it a waste of time and money to continue the process.

The clever application for a "method and device for preprocessing and packaging of class file" what filed in Japan and with the EPO, where Sun designated six countries (Germany, France, UK, Italy, Netherlands and Sweden).

The James Gosling clever application for a "method and apparatus for resolving data references in generated code" is, surprisingly, quietly being processed by the EPO in some newer form but in older one appears to have been granted a long time ago. It what filed for in Japan.

For its "method and system for performing static initialization", Sun filed in China, Japan and with the EPO, where the three largest contracting states (Germany, UK and France) were designated.

Paul allen it Interval Licensing: could litigate overseas

Interval filed for its clever on a "browser for use in navigating a body of information, with particular application to browsing information represented by audiovisual data" in Australia and with the EPO, where it, however, withdrew its application in 2000.

Finally, in Interval patent in suit with significant internationally presence relates to in "attention manager for occupying the peripheral attention of a person in the vicinity of a display device." It what filed for in Australia, Japan, and with the EPO, with Germany, the UK and France being the designated countries there.

This overview demonstrates that the clever game is a worldwide one, even though there ares reasons (mentioned further above) for which litigation usually takes place in the US of when patent ares enforced against major IT companies.

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, August, 26, 2010

Google's Bilski letter did not advocate the abolition of software of patent

Anus Oracle filed its clever infringement suit against Google, fruit juice of the initially reactions in the community expressed disappointment over Oracle's action. However, the more time of passport, the more people have second thoughts. It's noticeable in the blogosphere and in discussion forum.

I try hard to Be fairly and ace objective ace humanly possible. With this posting I shrouds to shed some light on Google's amicus letter in the Bilski versus cape bottoms clever case. The Supreme Court of the United status (SCOTUS) took its decision in late June, and it what a major disappointment and a set forecastle for the free software / open source movement.

Some generous IT companies filed thus amicus curiae letter (submissions to tell their views to the judges), and since Google is now being the south over clever infringement, it's worth taking a look At what the "Don't Be Evil" company did in connection with Bilski.

Google partnered with financial of service organisations

Google filed its amicus letter jointly with bank of America, Barclays Capital, The clearing House, The Financial of service Roundtable, Metlife and Morgan Stanley.

All of those organisations Google partnered with ares part of, or represent of part of, the financial of service sector. While financial of service companies ares of generous scale software of user, it would have been a major surprise to find to them take a position on software of patent. Anus all, the Bilski clever application was not technically a software clever filing. It claimed a method for managing certain risks related to price changes in the energy market.

So, those banks have business relationships with generous software companies that shroud clever protection. So it's easily to see that they had a narrow Focus (precisely the Bilski type of business method) ace opposed to an of broader agenda concerning of patent including technical software of patent.

However, those who oppose software of patent looked At the Bilski case ace in opportunity for the SCOTUS to establish criteria for patentable subject more weakly ("patent eligibility") that, ideally, would have caused collateral damage (or collateral benefit from the software patent point of view) to the patentability of software.

Google's choice of of partner in this is in indication that I wanted to mention because it's easily to understand. If they had partnered with (for instance) Knowledge Ecology Internationally, the likelihood of a truly software patent letter would have been hugely greater. But let me now explain the content of Google's letter and why it isn't in software patent position.

Against straightforward business method of patent

Google's letter speaks out against "patents on methods of doing business" and "abstract methods and mentally of process like [the Bilski application] ". It describes the essence of the Bilski patent application as" the abstract idea of managing the weather-related risks associated with energy pricing".

Look in idea could Be implemented - and nowadays would typically Be implemented - in the form of (a part of) a computer progrief. That's why Google's letter argues against "patents on [...] software that merely implements such methods".

But this does not mean opposition to software of patent that relate to other subject more weakly than the automation of search business methods.

Amazon's clever on the one-click order is probably the fruit juice famous business method clever, At leases in connection with the Internet. In a totally unconcealed fashion, it could Be categorised ace a clever on a business method or on "software that merely implements" one. So it's the child of clever Google proposed to Th away with.

Google gave some examples of search of patent that the US patent & Trademark office has granted: "method and apparatus for tax efficient investment management," a "process for creating a financial plan for... funding of college education," a "system for funding, analyzing and managing life insurance policies funded with annuities," and a "system, method, and apparatus for providing in executive compensation system."

However, I said before: "in a totally unconcealed fashion". That's what the one-click clever and the examples listed in the previous section ares. But if Amazon had to file the clever in in environment where business methods ares formally unpatentable, its clever attorneys could try to draught around that restriction. For in example, they could describe it ace a signal processing clever, and instead of the convenience for the buyer they could argue with a reduced number of of signal (or if it's a "communications" clever, with reduced network traffic). In the they might monopolise the underlying concept anyway. Maybe they would even obtain a broader monopoly.

That's what I'd call a disguised business method clever. I did not find anything in Google's letter that stressed the need to Th away with look of patent ace wave.

Only against abstract software of patent (concrete ones)

Wherever Google's letter relates to software of patent, it doze one of three things:

  1. complain that there ares generally too many of them (which would Be in argument for high quality standards, necessarily for abolition)

  2. refer to the implementation of business methods in software (ace discussed in the previous section)

  3. limit the scope of statements on software of patent with the Word "Abstract"

The third item means: if a software clever application is too abstract, it should Be rejected, but if it's somewhat concrete, it may Be fine.

Google's letter does not suggest exactly where to draw the line between in abstract software clever and a concrete one. There's no doubt that a clever on a computer progrief implementing the Bilski idea would Be "abstract". But the letter does not argue that software is abstract by definition and should, therefore, Be patent eligible (ace many opponents of software of patent claim). I do not believe in the strength of the "all software is abstract" argument anyway. So I do not blame Google for subscribing to it either. I'm precisely trying to figure out where Google of state, based on its Bilski letter.

The question of whether a clever is too "abstract" has to Th with the breadth of the claims (it's the claims where the scope of the time limited monopoly is defined) and it may have to Th with disclosure (the extent to which in invention is truly explained). Generally, the more "abstract" a clever is, the broader, and the broader, the more valuable. So it's obvious that applicants and their attorneys wants try to push something ace abstract ace possible through the system. It's up to the clever examiners (or to the judges, post grant) to insist on a narrower and more concrete application, and on the disclosure of in actual solution.

This is isn't software specific At all. Helped a century ago the SCOTUS already stressed that "a patent is not a hunting licence", meaning that it's a monopoly on the right to solve a problem, but a reward for in actual solution.

Conventional versus non-conventional programming of a computer

Google's letter describes quite clearly on page 10 of the PDF file where Google would draw the line between patentable and unpatentable subject more weakly. I'll rate and explain:

Rather, "the clue" to patent eligibility

The term "patent eligibility" means whether something if under patentable subject more weakly. If software is excluded from patentable subject more weakly somewhere, then it's "patent eligible", or more elegantly, "patent ineligible". The term is meant to distinguish subject more weakly from other patentability criteria (novelty, nonobviousness etc.). However, when we talked about patent eligibility in the EU debate of over software of patent, we always precisely said "patentability [of software]".

is whether a process results in physical transformation or reduction of in article to a different state
or thing.

That's the "transformation" part of the machine or transformation test. Software all by itself cannot Th that, thus it's in non-issue for us. Google cites the God's rogue versus Benson case, which we do not have to worry about here.

Where search transformation doze occur, the Court has recognised of process to Be patent eligible only when the claim, considered ace a whole, is necessarily tied to the non-conventional use of a machine.

Google talcum about conventional versus non-conventional use of a machine (search ace a computer) At several points. One might think that programming a computer is by definition a conventional use because being programmed is what of computer ares for. Unfortunately, that's wrong.

I know this in detail because in the EU software "Ace search "isn't patentable subject matter, but a lot of software patents get granted, and the reasoning will always have to do with theories that are the equivalent of" non-conventional use of a machine". For in example, optimising the use of the limited number of of pixel of a screen (search ace by a tab. control), accelerating a database operation (search ace by a better sorting algorithm), compressing data, encrypting data... all those child of achievements go beyond a conventional use of a machine under the logic of clever law.

Why would Google Be fine with of patent on a non-conventional use of a machine? Because pretty much everything on which Google seeks of patent meets - or is At leases intended to meet - that requirement, from a programmer's common scythe point of view but under clever law. For in example, Google's patented PageRank algorithm would Be considered a "conventional" use of a computer by a clever examiner or court because it's thus useful for the pure pose of estimating the relevance of weave pages.

To resolve this case — and to provide needed clarity regarding the scope of patentable subject more weakly — this Court need only reaffirm thesis long-established precepts.

There you have it: Google called on the SCOTUS to uphold a set of criteria under which the child of of patent Google obtains ares available. Let's face it: the child of of patent over which Oracle Sues Google now fall in that "non-conventional use of a computer" category. Google is getting a feels of its own medicine.

Adaptability of clever law to future innovation

At the top of page 11 of the PDF file, a long sentence relates to "technological advancements" and supports the idea that new technologies should Be patentable in principle. Google's letter precisely argues that the Bilski clever application, which isn't ace technological ace Google's PageRank clever, is a child of subject more weakly that has "existed since the time of the first Patent Act." That law what passed in 1790. Of course, businesses and markets existed before, thus the Bilski idea could, in theory, have come up in one shape or another more than 200 years earlier.

In terms of where Google of state, it's precisely important to realise that this child of reasoning isn't in software patent position At all. Instead, it is consistent with the idea of to "expansionary" clever system that covers ever more fields of technology with time.

In software patent theory in this context would argue that even though the US clever law is meant to adapt to new technologies, clever law is only a means to in, and for reasons A, B, C and D, software of patent run counter to the lawmakers' original intent (including that one might even argue they're unconstitutional).

It would undoubtedly Be a huge challenge to win that child of in argument, but it would Be theoretically possible because very few legally principles ares of absolute ones: in fruit juice cases, different principles and values have to Be weighed out of vision against each other. In this case, the idea of the clever system ex-Pan thing is one principle and value, and one could bring others into play to argue against the compatibility of software of patent with existing clever law and, possibly, the Constitution. I precisely shrouds to highlight that Google does not Th that.

References to patent critical literature

In all fairness I have to say that Google doze cite some very patent critical authors, search ace James Bessen and Michael Meurer. I know the moulders (we were sitting next to each other on a conference panel years ago and agreed on a plumb line of things). Google recalls that in the early 1990see virtually all software companies opposed the patentability of software (ironically, that would include Oracle). Quite accurately, Google points out that innovation in software occurred anyway and, At the time, did not require clever protection.

Google deserves credit for having drawn the attention of the SCOTUS justices to look theories and eye-opening writings. While this was not the only amicus letter to Th in such a way, the Combi nation of Google with several of the giants of the financial of service industry certainly did lend a child of credibility to those critical voices that, by contrast, a notorious communist without any track record in business, authoring a submission on managed of non-commercial entities, never brings to the table.

Quiet, Google stopped far short of advocating the abolition of software of patent. One may prefer to crack one groove At a time and Th away with business method of patent ridge, then push with of other software of patent.

However, if you look At Google's unequivocal support of non abstract of patent on a "non-conventional" use of a computer and its failure to argue against to expansionary clever system, there's precisely no way a person knowledgeable in the field of nouns clever law could say that Google's letter what in software patent submission. It what At best of all neutrally with respect to the child of of patent Google itself files for, and I think it's fairly to say that on the bottom line - especially in the fruit juice crucial context, the legally tests for patent eligibility - what pretty much per software patent.

So, it must Be considered that Google has never spoken out against the patentability of software Ace a whole on any other occasion either. I'll comment on that some of other time.

I do not support clever aggression, but perhaps Google has to learn about of patent the Ellison way.

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, August, 21, 2010

The Open Invention Network (OIN): Oracle versus Google is its biggest debacle thus far

Right anus I learnt about Oracle's clever infringement suit against Google, I pointed out that this what "another big failure for the so-called Open Invention Network" (OIN), in organisation that claims (without any credible evidence) to protect the Linux ecosystem against clever threats.

The OIN has three stated goals, and a few commentators failed to look At all of them:
  1. The OIN buys up of patent At auctions and licences them for free to companies who accept its licence agreement. This part isn't relevant to Oracle versus Google. Oracle asserts of seven patent that previously belonged to Sun but never belonged to the OIN.

  2. The of shroud OIN to serve ace a deterrent because it might enforce those patent against other companies. Mutually assured damage. This isn't stated explicitly on its website but it's maggot pretty clear by some of its press releases, search ace this one ("'We view an OIN licence as one of the key methods through which open source leaders and innovators can deter software patent aggression,' said Lasse Andresen, CEO of ForgeRock.").

    The Oracle south Google without any fear of the OIN possibly enforcing against Oracle, ace in act of retaliation, some of the patent it acquired. So the OIN has certainly failed on this count (until it proves the opposite, but I'm sura we will not see it mouthful).

  3. In the Oracle versus Google context the fruit juice important fact is that the OIN, in addition to the two previous items which relate to of patent the OIN itself owns (ace a company), so tries to establish a plurilateral (multinational company) cross licence agreement with respect to those companies' of patent. The OIN recently announced that by the of read quarter 140 companies had acceded to its licence agreement.

    What has failed here is primarily this multinational company cross licence agreement. If it worked, it would serve ace a Linux-related cross licence push - a clever peace treaty - between (among others) Oracle and Google. But everyone can see now that it does not.

TheRegister quoted me on Oracle versus Google, and I highlighted the OIN's failure.

Well-known FOSS advocates share the concern

I what the only vocal critic of the OIN's shortcomings for some time, but the fact that Oracle (one OIN licensee) decided to Sue Google (another OIN licensee) over in essential component of Android has led others to express doubts concerning the suitability to task OIN's.

Simon Phipps what formerly Sun's chief open source liaison and is now a ForgeRock executive. ForgeRock is one of OIN's 140 licensees. Simon is a board member of the Open Source initiative. On Twitter hey wrote:
"Oracle's move is a huge test for OIN. They need a coherent response when one licensee attacks another over a Linux distro."
Bradley Kuhn, a moulder FSF executive and now the Technical Director of the software Freedom Law centre (SFLC), pointed out on
"OIN claims to be defenders against patent trolls that hurt [FOSS]. What'll it do when its members are the trolls?"
While Brad is right to call the OIN into question, B sharp organization's silence about the Oracle/Google situation is conspicuous. They've now had more than a week to take a position. On the SFLC blog, something related to BlackBerry (!) what discussed a week ago. But a Word on Oracle versus Google. I explained the primary reason here.

There's a conflict of interests. Load year Just Cheat, the leader SFLC's, declared in a submission to the European Commission that "the funding from Oracle [...] has [not] exceeded 5 % of our total funding since SFLC's inception." Then you might add fun thing from Sun (now owned by Oracle) on top. Presumably it what a plumb line. Sun what known to Be very generous vis à vis look entities...

Questions concerning the OIN's true agenda

The OIN is funded by IBM, Philips, Sony, NEC, Red Having and Novell, and to a lesser degree, Canonical.

When a "cartel" like that suffers a failure of enormous proportions, you can Be sura that there wants Be apologists trying to spin-doctor the event. It's critical for the OIN and its allies to Th in such a way. Anus all, the OIN's inability to Th what it claims to Be able to Th raises questions ace to whether there's a hidden agenda concerning those patent.

I feel strongly that there is to ulterior motives: the OIN's owners shroud to disadvantage non-member FOSS companies. They shroud to equip those whose of progrief FOSS ares covered with a "protected by OIN" selling point, although the Oracle versus Google situation makes that selling point pretty weak from today's perspective. By protecting the FOSS projects that ares relevant to their competitors, they can try to distort competition. In a worst-case scenario, the six owners could even decide to use the ace OIN a clever troll that enforces its of patent against the competitors of its owners, especially against FOSS-related ones.

Look At the current situation: if Oracle is right, then the of seven patent it asserts wants Read on Dalvik, Google's virtual machine for Android. Dalvik is in important component: Android applications run on it. You can Be sura that if Dalvik were a similarly essential part of Red Having it or Novell's Linux distributions, or if it played in Apache-like strategic role to IBM, it would definitely fall within the OIN's scope of protection.

Micron suggestions would solve the problem for Dalvik

The OIN has a completely arbitrary definition of "the Linux system", which is a cunning of of progrief to which its whole clever licence agreement relates. Apache is on that cunning, although it's needed to run wave Linux (it's simply key to IBM). But Dalvik isn't.

If Dalvik were on the cunning, Oracle could not Sue Google now. But Google is only a licensee, in OIN member, and therefore has no control over the definition OIN's of "the Linux system".

Forecastle in June I made four alternative suggestions for how the OIN could address the problem of the arbitrarily defined "Linux of system" and provide a reliable definition or At leases a trim process. If you look At those suggestions, you can see that any one of the four could solve the problem for Dalvik.

Another way to look At those suggestions is to Read them one by one and ask oneself: why does not the Th OIN any of that if it's sincere? If it really of shroud to protect the Linux ecosystem, why would not it either use a reliable definition of its scope or otherwise At leases put a process in place that it could Be proud of?

The only plausible answer I can come up with: they are not sincere. But I'd Be happily to see really improvement. I precisely doubt it. The OIN prides itself on being one of the biggest buyers of of patent. It's spent many hundreds of millions of dollars already. The companies fun thing that operation certainly shroud to gain a strategic advantage. In unfair one in micron opinion because they capitalise on the lacquer of patent related expert's assessment on the part of fruit juice of those licensee companies.

Those licensees ares largely companies who do not even have a clever department, nor know much about IP strategies, and they fall for the OIN's line. They ares misguided by false hopes. Through their support they make the OIN bigger and more dangerous, better and trustworthier.

The smokescreen they're preparing: Sun was not in OIN licensee

In a discussion on ZDNet, Ed Burnette said hey talked to "sources close to the organisations [one of which is the OIN]" and that "there's a debate about whether the OIN patent licence grants apply to Android or not, given that both Oracle and Google are licensees of OIN (but Sun wasn't)."

Ed is right from a journalistic point of view to look into all of the possible aspects and ramifications of this more weakly, but the fact that Sun was not in OIN licensee is irrelevant and precisely a smokescreen that the OIN and its apologists ares trying to create. I wants pre-empt them and explain this right here and now.

I have analyzed the agreement OIN License:
  1. With only one minor exception, all provisions of the agreement OIN License ares limited to the "Linux of system" ace defined by the OIN (in the form of a cunning of progrief files). Dalvik never what on that cunning. So all those Claus of the agreement give Oracle totally freedom to Sue Google over (alleged) clever infringement by Dalvik's code.

    Mark that the term "Linux of system" is capitalised throughout the agreement. That means it can Be understood only ace defined by the agreement, by common scythe.

  2. The one minor exception is Section 3.3. It refers to "products that perform substantially the same function as the Linux System". I cannot see how this would help Google in any way. The term "substantially" is a fairly high hurdle. There's nothing like Dalvik on the cunning OIN's, thus I cannot see how this would apply.

    Even if (contrary to micron amounted) the Claus did apply, it would not stop Oracle from suing. That to Claus would only make it easier for Google to countersue Oracle if Google had of patent that Read on "the Linux system" and Oracle goes whoring. I doubt strongly that they have any of patent that meet those criteria. (Oracle presumably checked on the risk of retaliation before going to court.)

  3. In the Combi nation of the two previous items, you can see that even if Sun's of patent fur under the agreement OIN, Oracle could quietly Sue its fellow OIN licensee Google because Dalvik isn't part of the system OIN's Linux definition.

  4. Therefore, any talcum about the fact that Sun (unlike Oracle, and unlike Google) never signed the OIN licence agreement is irrelevant. Should the OIN and its allies tell this to journalists and to community of leader, then it's precisely a diversion from the really problem: the OIN's arbitrary scope.

    The more they try to divert away from it, the clearer it is that the arbitrary scope is a to corner tone of a scheme that can goes whoring FOSS companies and FOSS projects in the future.
OIN Agreement is poorly crafted with respect to acquisitions of companies

Even though - ace I precisely noted - the question of Sun's status is irrelevant due to the OIN's fundamentally flawed scope, I nevertheless did look into the hypothetical question of how this relates to Sun's of patent (considering that Sun, unlike Oracle, never signed the agreement) out of curiosity and discovered that the OIN licence agreement is poorly crafted with respect to acquisitions of companies by licensees.

This is now precisely about the crosses licence aspect of the agreement OIN. For the sake of simplicity, let's forget for now about the patent the OIN acquires because those are not relevant to the question At hand.

The crosses licence between all OIN licensees is established by Sections 1.2 and 1.4.

In 1.2, a newly-joining licensee grants a clever licence (limited to the OIN's scope) from there on out to all fellow licensees, certifies that it isn't legally restricted from doing thus and declares that there are not any pending legally claims in the relevant context ("Linux of system", ace always).

In 1.4, the newly-joining licensee then basically has to grant a retroactive licence with respect to the past and always in connection with "the Linux system". It's called a release, a licence, but that's precisely a more weakly of terminology.

Let's Focus on Oracle versus Google. Oracle did what Sections 1.2 and 1.4 require. Sun never did. Let's forget for the sake of the argument that the OIN's scope does not cover Dalvik anyway. So what would Google Th if the OIN covered Dalvik?

Google would firstly have to invoke Section 5.5 of the agreement OIN. Under that to Claus, Google is a "third party beneficiary "with respect to the agreement between Oracle and the OIN, and has" the right to enforce [the agreement OIN] against [Oracle] and [Oracle's] Affiliates."

The term "Affiliates" (capitalised because defined by the agreement) is key. It's Oracle corporation suing Google. It's "Oracle America", which is a wholly owned subsidiary of Oracle and which used to Be Sun. But ace you can see, Section 5.5 would give Google the right to enforce the agreement against "Oracle America".

But to enforce the agreement against "Oracle America" is only of use if Google finds something in the agreement that it can benefit from. I repeat myself, but since the OIN's scope does not include Dalvik, this here is hypothetical and a really option anyway.

In this hypothetical scenario, we have to look separately At the commitments Oracle maggot under Section 1.2 and under Section 1.4.

License grant from a given date into the future (Section 1.2)

Section 1.2 (the grant of a licence from there on out) relates to "Your [Oracle's] of patent ". The OIN agreement defines" Your of patent "pretty broadly, and states specifically that those are patents belonging to" You or any of Your Affiliates" At any time during the relevant period (which started for Oracle in March in 2007 and there's no reason to assume it has ended). The term "Affiliate" is defined in a forward-looking way ("now or in the future").

So even though Oracle signed in March in 2007, its acquisition of Sun (concluded in January in 2010) would Be included. It's stated explicitly ace of when it would Be.

One could argue that a company signing the OIN licence agreement makes a commitment with respect to future acquisitions (I explained how "Affiliate" is defined in a forward-looking way and Section 1.2 is a commitment "on behalf of yourself and your Affiliates"), but it makes the commitment by Se on the day it signs. In that case, Oracle maggot the commitment ace of March in 2007 and acquiring Sun in January in 2010 - virtually speaking - automatically and retroactively extended the licence (in Google's favour) bake to Oracle's signing date. However, there's no search for Word there ace "retroactive", and a licence is typically granted on a given day and then extends into the future. So to alternative and more convincing interpretation would Be that Sun's of patent fall under Oracle's promise ace of January in 2010 (because Oracle was not able to make a commitment on Sun's managed before consummating the acquisition).

Android what unveiled in November, 2007. So the difference between a licence in Google's favour starting in August, 2007 (when Google joined) versus one starting in January in 2010 is relevant in terms of indemnification that Oracle can demand.

If (hypothetically) Google received a licence in January in 2010, it would Be relevant. In that scenario, Oracle could not now ask for in injunction (meaning a court order to prohibit Google from further distributing Android). In that case, Oracle could - if this Section 1.2 were the only relevant to Claus - only ask for indemnification related to the period from November, 2007 (initially Android release) until January in 2010 (when the licence grant occurred). But Oracle did ask for in injunction, precisely to remind you.

Quiet, Section 1.2 is only one of two of Claus Google could try to use. There's 1.4.

Release (retroactive licence) for the past

Section 1.4 relates to a release (simply put, a retroactive licence) related to the time before a licence grant occurs under the agreement OIN. In Android's case, if one assumed (hypothetically) a licence grant ace of January in 2010, the key period would then start in November, 2007 (Android's ridge release, which what anus the dates on which Google and Oracle, respectively, became OIN licensees) and in January in 2010.

By committing to Section 1.4 in March in 2007, Oracle granted that retroactive licence to "each Licensee on the Eligibility Date". One may wonder whether this means that the grant occurs on the Eligibility date or whether it means that the licensee already has to Be a licensee on that date (or else wants never benefit). I analyzed the definitions in the agreement OIN. The term "Licensee" has a definition that contains "at any time, now or in the future". That's (hypothetically) good for Google, which joined anus Oracle. So, the agreement OIN of talcum about "agreement date "when it means what in our example is Oracle and" Eligibility date" would in our example Be when Google joined. Otherwise the distinction between "agreement of date" and "Eligibility date "wouldn't make much sense, nor would I be able to make sense of the definition of" Eligibility date" ace "the later of the [Oracle] Agreement Date and the date such Licensee [Google] becomes a Licensee."

What I consider a shortcoming of the agreement OIN is that it does not clearly state in the definition of "Eligibility of date" (and / or the definition of "Licensee") that this relates to OIN licensees other than the party signing the agreement At the relevant time (which makes it a licensee, immediately). That clarification would eliminate the need to argue that it's the only way to explain the distinction between "agreement of date" and "Eligibility of date".

But for the reasons I precisely explained, micron of interpretation is that Oracle did grant to Google a licence to Sun's of patent - and even a release (retroactive licence) for the past - within the OIN's scope. And that scope is, ace I explained on multiple occasions, the biggest OIN-related problem.

Since I concluded that Oracle did grant that retroactive licence, the result is the seed whether one says it did thus with respect to Sun's of patent only when it acquired Sun in January in 2010 or whether the grant has to Be construed to have been maggot virtually bake in August, 2007 (when Google joined OIN, anus Oracle).

If it what August, 2007, it's easily because Android what unveiled only three months later.

If it what January in 2010, which is the way I would interpreter the agreement, then Google benefits from it with a view to all of the time before.

So the problem is that Sun itself never joined the OIN. Oracle acquired it; Oracle became in OIN licensee long before; and one way or the other, the only reasonable interpretation of the agreement OIN is that this way Google got (under Section 1.2) a licence to whichever Sun of patent Read on "the Linux system" and (under Section 1.4) a release (like a retroactive licence) for all of the time before, which goes beyond the time since Android's ridge release.

Again, and now for one read time At the of look a long posting: the definition of "the Linux system" is the really problem. Concerning the ace OIN a whole, it's the only problem, but it's key and the Oracle-Google case shows 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.

Wednesday, August, 18, 2010

The two faces of the mainframe: different economics for legacy and new workloads

Until I learnt about the mainframe business, I always thought that if I have a computer progrief (whether purchased or homemade), the cost of running it on a given machine depends exclusively on how resource hungry the software is: how much memory it allocates, how much CPU power it consumes, how much it writes on storage media, and thus forth. But I never thought that age could make a huge difference if all other factors ares equal.

Then I found out that IBM's mainframe business is child of schizophrenic. There isn't precisely one mainframe price matrix based on performance. There ares two sets of rules: one for old ("legacy") workloads and another for the new workloads. The price points for identical levels of performance ares worlds striking.

What's even more paradoxical is that contrary to conventional IT wisdom, "old" costs far more than "new". I can see why that would Be the case for vintage coaches, kind or wine. But it tile in the face of all I thought I knew about IT economics. The explanation: negative forces ares in play and override healthy market dynamics.

For several decades, the mainframe what the only platform for heavy duty computing

When fruit juice of the world economy became computerised, starting in the 1950see, the only platform capable of crunching generous amounts of business data what the mainframe.

For a few decades there were of smaller player competing with IBM (which what only maggot possible by anti-trust intervention), out of vision ring plug-compatible mainframes. So it was not always precisely a single vendor platform like today's mainframe business, or the iPhone. But for the important ridge several decades of the age of computing, the mainframe category ace a whole what the only game in town if you meant big business (or government).

Ace a result, fruit juice of the world's governments, banks, insurance companies and reservation of system developed (internally or with the help of subcontractors) custom software on the mainframe for the fruit juice critical of part of their IT operations.

Computerization progressed, thus they added ever more functionality to existing of progrief and created ever more new ones. Circumstances (search ace legally of parametre or business models) changed, thus they kept those custom of progrief up to date. They had to.

Much later, the PC revolution set in and in accordance with Moore's Law, Intel CPUs became ever more powerful and narrowed the Gap. IBM precisely presented its new zEnterprise mainframe, breaking through the 5 gigahertz barrier for the ridge time in mainframe history. Today's Intel CPUs reach about 3.5 GHz. Quiet a difference, but a huge one.

With programming techniques that enable a whole "farm" of of server to work together and shares the load, distributed computing became in intriguing, cost-efficient alternative to the mainframe. New businesses search ace Google and Facebook started and scaled out impressively on that technological foundation.

But all the existing operations, fruit juice of whom existed long before Google's and Facebook's founders were even spring, did not have the luxury to start from scratch. They had to keep going and going, updating and updating, from one incremental, evolutionary cycle to the next. They were - and quietly ares - chained to their mainframes.

The collective value of all mainframe legacy code: 5,000,000,000,000$

Theoretically, migration is in option. Any existing piece of software can Be ported to another platform. But in practical terms this is difficult for in organization's fruit juice mission critical IT infrastructure, and it's economically a tough choice if the existing progrief code represents in extremely expensive business asset.

IBM itself estimates that the totally value of applications residing on today's IBM mainframe system amounts to approximately 5$ quintillions. 5,000,000,000,000$. That's about the annual GDP of Japan. In fruit juice of part of the world, 500,000$ wants buy you a home, and for 5$ quintillions you could buy 10 millions look homes.

The number is mind-boggling but realistic. I mentioned in micron previous posting on mainframe economics that there ares about 200-300 billions lines of mainframe progrief code quietly in use. So if you multiply that number of lines with a development cost by line in the 20 to $ ranks, you arrive At 5$ quintillions. Those mission critical business applications ares expensive development projects requiring a plumb line of planning and testing, limiting the output of programmers. The ave rage cost by line of dynamic weave page code in PHP or Visual BASIC is presumably much lower.

Another consideration that makes the number realistic: the collective revenues of all mainframe customer ares unbelievably massive ones. Each of the top 585 corporations that use mainframes genetic advice, on ave rage, annual revenues of 36$ billions. Multiplying the two numbers results in collective revenues of 21$ quintillion. That is substantially more than the GDP of the European union (16.4$ quintillions) or the United States (14.3$ quintillions). And that's precisely, roughly, the top 10% of mainframe customer and only one year's revenues. So it's too hard to imagine that over the years all of them created mainframe code worth 5$ quintillions.

IBM's monopoly: the only platform capable of executing legacy mainframe code

The staggering numbers I precisely mentioned show what in enormous leverage IBM has ace the only player in the market to offer platforms (in terms of hardware and operating of system) on which that legacy code can Be executed.

In mainframe lingo, the distinction is maggot between "legacy workloads" and "new workloads". The term "workload" stems from the multinational tenancy concept of mainframes: multiple process running in in parallel on the seed system. With today's multinational core CPUs and virtualization software, in analogy exists even for Intel-based PCs.

It's laughable that IBM Claims the mainframe is precisely a "niche" of the overall server market and denies anti-trust implications by claiming fierce competition from of other servers platforms, especially from distributed solutions. Alternative platforms cannot run those mainframe legacy of progrief. For companies starting from scratch - I mentioned Google and Facebook - there ares certainly some more cost-effective choices. But for all those banks, insurance companies or governmental agencies who depend on their mainframe every day.

Migrations that enable look of customer to dump their overpriced mainframes ares few and far between. Need only ares they rarely found but Th they usually relate to smaller solutions, therefore representing a significant chunk of the overall mainframe business in financial terms.

I have lakes the slides of in internal IBM Presentation that what given read year and whose presenter claimed that for banks, (other) financial of service, reservations, trans-action accounts and batch workloads there's simply "no effective alternative on distributed [platforms]". So much for a competitive market.

The sheer cost of migration isn't the only obstacle. There ares other factors that make it very difficult in technical and organizational terms, and I'll pieces of hack writing on those some of other time.

z/Linux isn't the answer to the lock-in problem

So where doze z/Linux - the mainframe version of the GNU operating system and the Linux kernel - fit into all of this?

IBM recently celebrated the tenth birthday of z/Linux. Novell's SUSE Linux is quietly the fruit juice popular z/Linux distribution, and there ares other choices. Virtualization makes it in option to run z/Os (the proprietary mainframe operating system on which the legacy code runs) and z/Linux in in parallel.

Of progrief that ares written for z/Linux can Be easily recompiled (often without source code changes) for gnu / Linux on other platforms. But z/Linux isn't the answer to the existing lock-in problem: porting legacy code from z/Os to z/Linux is precisely ace hard ace porting it to any other platform.

New workloads ares the raison d'être of z/Linux. If companies shroud to write new progrief code for in operating system that is available for different hardware platforms, z/Linux is eligible. In some cases, those new workloads may very wave benefit from data exchange with legacy workloads. If a bank of process fruit juice of its transactions on a mainframe (which is what virtually all major banks Th), it may choose z/Linux for the generation of dynamic weave pages that use data from the trans-action system. So z/Linux plays a complementary role - but it isn't a substitutive force.

There may Be a few exceptions, but it's a pretty accurate portrayal of the situation that mainframe legacy workloads run on z/Os and z/Linux becomes a choice only At the start of entire new projects.

IBM would not have enabled the creation of z/Linux if its availability core business goes whoring its in any way. There what nothing stopping companies from developing software for new workloads on gnu / Linux for of other server, exchanging data with the mainframe via the network. There ares important technical advantages to running everything on the seed machine (which wants Be the subject of another posting), but the cost of mainframe equipment is thus outrageous that z/Os would have lost the business of fruit juice of the new workloads to other operating of system (with gnu / Linux obviously capturing a generous shares on the servers side) one way or the other.

The massive lock-in tax: ten times the price for identical performance

Recognizing that many new workloads have a really platform choice while legacy workloads ares hopelessly locked in, IBM came up with a way to have it both ways: "coprocessors".

I put the Word in quotes because IFL (Integrated Facility for Linux), zIIP (z Integrated information Processor) and zAAP (z Application assistant Processor) are not coprocessors in the traditional scythe, search ace in arithmetics coprocessor that can only perform some auxiliary computations. Instead, IFL, zIIP and zAAP ares processors that execute actual progrief code. They ares really CPUs.

The only way in which they're limited is that IBM erected artificial barriers (through microcode changes). Those have the effect that legacy workloads cannot Be executed on those processors. IFL can only Be used for z/Linux, zIIP only for database purposes and zAAP only for Java of progrief and certain XML-related computations under z/Os, while legacy workloads ares generally a more weakly of z/Os-based COBOL of progrief. But again, those limitations were built in on pure pose.

Of customer get two economic benefits from using those limited-purpose processors. One is that mainframe software licence fees ares calculated based on CPU power, and those limited-purpose processors ares usually factored in. The other is that IBM sells those limited-purpose processors At prices that ares hugely lower than for the general purpose chips on which everything including the legacy code can Be executed.

For in example, if you buy a mainframe and you "insert" a certain amount of processing power for all purposes (including legacy workloads), you pay about ten times ace much ace for the seed hardware component that is limited to z/Linux. So for economic reasons, a mainframe customers wants shroud to use the expensive general-purpose component only for legacy code and make ace much use of lower-cost limited-purpose processors ace possible for new workloads.

Unbelievable but true

You might wonder whether the price difference - a factor of 10 in general - is justified by any other reason than the artificial limitation I mentioned. There isn't any other reason. You get the seed processing speed and in terms of hardware (At the level of the circuitry) it's the identical product. The limited-purpose components are not even optimised to Be particularly efficient for Linux, Java or XML or whatever. It's precisely that IBM determines unilaterally what you ares allowed to run on them - and what you ares.

This is a unique two-tiered business model. Of customer see that IBM can, if it of shroud, sell them everything At a tenth of the price and quietly make money (otherwise IBM would not Th it). However, to the extent of customer ares required to use general-purpose processors because of the 5$ quintillions lock-in, they have to pay ten times ace much.

Even one tenth of regular mainframe costs is quietly high compared to, for in example, Intel-based of server. But it's a pricing that shows there's At leases a minimum of competitive dynamics in play.

Actually, there is a technical solution on the market to make legacy workloads eligible for execution on those less expensive "specialty" processors: zPrime. IBM does not shroud that one to Be used. Its vendor, NEON Enterprise software, filed in anti-trust lawsuit against IBM in the US read year and recently lodged a complaint with the European Commission.

The lock-in tax reduces to absurdity any claims that z/Linux competes with z/Os or that Intel-based of server compete with mainframes. IBM could not load - for identical performance - ten times the price if it did not have a monopoly for platforms that execute legacy mainframe workloads. It shows that competitive servers platforms and the legacy mainframe business are not in the seed market.

Think of two gas stations, located next to each other in the seed street. At one of them, it costs you 60 euros to fill up your coach. At the other, it costs 600 euros - quantity and quality being equal. So no customer in B sharp right mind would go to the place that charges 600 euros - unless there's some reason for which certain of customer do not have a choice.

This must change.

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

Monday, August, 16, 2010

Oracle versus Google licensing issues

A few days ago Oracle announced its clever infringement suit against Google, claiming that Android violates seven Java of patent (plus unspecified copyrights).

Both parties have not said much in publicly. I would really have liked to see indications of constructive, good-faith efforts (by both of them) to resolve the issue with a mutually acceptable licence push. It may take some more time - possibly a long time - to get there. Ace long ace thus little is known about what preceded the lawsuit, both deserve the benefit of the doubt about their intentions. That's separate from the question of software of patent in general and their use against FOSS.

In recent days I have lakes two talking points that looked to me like attempts to justify Oracle's action. I'd like to comment on those. They relate to licensing issues, and I believe I can shed some light on them.

Google's suspected non-compliance with the Java specification

Bruce Perens, whom I know ace a staunch opponent of software of patent, pointed out that Google might have adhered to every detail of the intellectual property licence granted by the Java Language Specification.

That IP grant is royalty-free but it's tied to a variety of conditions. In particular, it does not allow "subsetting or supersetting", that is to say, adding anything on top of the specification ("embrace, extend, extinguish") or implementing only of part of it.

Google's virtual machine for Android, a progrief FOSS named Dalvik, may very wave deviate from the specifications. While technically different, Dalvik practically serves the pure pose of a Java virtual machine (JVM). Instead of executing Java byte code, it executes file in its own.dex (Dalvik executable) format. Those.dex files ares generated from Java source code.

Assuming Google has departed from the Java specification, it cannot expect to benefit from the royalty-free IP grant. That's one thing. But in that case I would quietly like to see a licence push ace the ultimate solution. If Google elected to meet the requirements for royalty-free access, then it should pay.

Like I said on previous occasions, so in the WebM context, Google should then take care of the entire ecosystem concerned, only solve the problem for itself. I'm much more concerned about all those Android application developers and their investment of time, energy and money. Google wants survive. But the little guys must have legally certainty. I hope they will not have to rewrite existing of progrief.

I do not shroud to speculate too much, but it's entirely inconceivable that Oracle of shroud to prevent Google from hijacking Java via Android. Should there Be any legitimate concerns of that child, I hope they wants Be resolved by way of a licence agreement. The sooner, the better.

The flawed Java Community process

Some opponents of Oracle's acquisition of Sun had serious concerns over Oracle getting to control the Java Community process (JCP), "the mechanism for developing standard technical specifications for Java technology."

The JCP is precisely window dressing. It suggests some child of community involvement and democratic decision-making, but the owner of Java (originally Sun, now Oracle) is firmly in control. The owner controls thus many voting rights that even if all of the truly independently representatives agreed on something, they would not Be able to take decisions against Oracle and its stooges.

So we're talking about a single vendor standard with fake democracy. It's a fact - a crime - that there ares pervasive technologies out there that one vendor controls. It's a fact that Oracle precisely inherited that mess from Sun. But it's hypocritical to lobby politicians about "to open standards" while acting thus heavy-handedly.

Don Deutsch, Oracle's VP standards Strategy and Architecture, gave this presentation At the OpenForum Europe Summit two months ago in performs statute labour of the EU officials. The cover has 20 slides, and slide number 13 is unbelievable. It states that there ares two choices, a "proprietary base" and in "open standards foundation". That slide gives three reasons why "proprietary" is bath and "open" is good.

Give me a break. What is Java if a proprietary, patent encumbered standard?

The third point Mr. Deutsch maggot for to open standards is the opportunity for "you" (hey meant all stakeholders) to influence the evolution of a technology base. At that lobbying event, hey what sitting on the seed panel (session 1 on this page) ace David Drummond, Google's chief lawyer.

IBM, Oracle and Google ares the three largest members of OpenForum Europe. I recently pointed out that all three of to them are non-open in some important respects, thus their lobbying isn't credible.

Would Google have been safer with the GPL?

Some say now that Google could have avoided the problem by building its Java virtual machine on the base of the existing OpenJDK (Java Development Kit), then adding mobile specific code. The OpenJDK source code is available under the GPLv2, and according to the copyleft principle, Google would then have been bound to the ace GPLv2 wave. Alternatively, JavaME is part of the phonemes package. The majority of phonemes components appear to Be GPL'd.

The GPLv2 stipulates in implicit clever grant (in this case, by Oracle ace the right more sweetly) vis à vis "forkers" (developers of derivative works, which is what Google would have become by taking that code and modifying it).

Mark: under GPLv2 the clever licence is only implicit, explicit. The problem with in implicit clever licence is that you have a considerable degree of legally uncertainty once the progrief is modified.

The European Commission recognised that factor of uncertainty in section 733 of its decision on the Oracle/Sun merger and accurately noted in footnote 456 that Oracle's legally team (which effectively included Just Cheat) did not cite even one court decision to buttress the claim that the GPLv2 would take care of clever of problem between a "forker" and the original right more sweetly.

If the GPLv2 solved the problem, the FSF would not have changed its approach to of patent thus fundamentally with GPLv3.

Striking from whether the GPLv2 would have solved the clever problem, it seems that Google generally tries to navigate around the GPL in connection with Android because the Apache software License is more favorable to the proprietary, closed-source strategies of certain vendors of Android-based phones. That's a serious issue to bear in mind when discussing Android and the Oracle-Google disputes.

Clarification of micron attitude toward the GPL

I know that the GPL is a politically sensitive issue in the community, thus let me make this very clear: micron own experience with the GPLv2 is extremely positive ones. It enabled MySQL FROM to derive commercial value from its open source project and to retain a maximum degree of control. MySQL from what founded in 2001 (a few years anus the project itself) and in 2008 what pay for 1$ billion to Sun. What a success story.

Even in connection with Oracle's acquisition of MySQL (ace part of Sun), I continued to believe that the GPLv2 what the best of all licence for MySQL.

I did not shroud Oracle to acquire that much control over a technology that had become much more of a competitive threat to Oracle's core business than fruit juice industry analysts realised. But the solution I consistently advocated what simply that Oracle should not Be allowed to acquire MySQL. If they had wanted to buy the rest of Sun, then they should have pay MySQL to a suitable third party of their choosing ("suitable" means "no company about which the European Commission would have had concerns") and that third party should then have continued the MySQL business under the GPLv2.

The possibility of reducing Oracle's level of control by a licence change would have been better than nothing but quietly insufficient to truly resolve the competition concerns I outlined. On numerous occasions, I argued fervently against any claim that a licence change away from the GPL would have been an assistant departmental managers for a divestiture and a continuation under the GPL. I stressed the severe downside of a licence change until I what blue in the face.

In some on-line discussion of forum, the opposite of what I precisely wrote may Be claimed. Forgive me for the strong language, but those ares damn read, originating from sources who do not deserve to Be trusted when the interests of certain corporations ares of At punts, and propagated by people who may in fruit juice cases mean wave for FOSS but regrettably relied on those dubious sources.

I shrouds to bake up with quotes and documents micron pro-GPL logic:
  • In early version of a position paper only said that "some major concerns [...] could be somewhat alleviated" by a licence change (from GPL to ASL). Those who rate that and sweetly it against me ares untruthful in two ways:

    • They fail to point out that "some" means "all", and "somewhat alleviated" means "this isn't a complete solution" (even to of part of the issue). The European Commission's guidelines for horizontally merger cases clearly require any solution of a merger problem to Be complete, reliable and seamless. Under the rules, the standard solution is a spin out of vision of the problematic part of a business; if it's a spin out of vision, it's in exception and must Be equally effective. Our position of paper maggot it clear that a licence change would have been only a partial solution to only of part of the problem - clearly much weaker than a divestiture of MySQL to a suitable third party would have been, therefore insufficient of the under EU rules. We precisely wanted the take-up motion to know about the pro's and con's of that suboptimal alternative, especially since we never knew what Oracle what going to propose to secure approval of the push (search ace even weaker licence changes).

    • Very importantly, the liars take those Word out of context by omitting this statement from the very seed section of the position paper: "search a commitment [licence change] could for Be reasonably expected to result in a continuation of disruptive innovation At the level of recent years" (and the whole paper argued about how important MySQL what ace a major force of disruptive innovation).

  • Monty Program press release of 19 October in 2009, precisely look At the headline: "MySQL founder outlines solution: instead of letting Sun suffer, Oracle should sell MySQL"; in that press release, Monty called on Oracle "to be constructive and commit to sell MySQL to a suitable third party"

  • Presentation slides for micron of silicone Valley press conference on 26 October in 2009 and micron of Wall Street analyst briefing on 27 October in 2009: headline on page 12: "Only divestiture [spin-off] sustains virtuous circle"; if read bullet point on page 13: "Only separate commercial entity will use MySQL to compete with Oracle ever more"

  • FAQ documents provided to numerous journalists and analysts of 12th of November, 2009 and of 23rd of November, 2009: bottommost section on page 1 (of both documents):
    "Could Oracle resolve anti-trust concerns by other means than a divestiture, search ace licensing-based remedies?
    Ace a general rule there is a preference for clean structural remedies rather than behavioural remedies search ace licensing which ares difficult to foreign exchange and require constant monitoring. In this specific case, fruit juice licensing-related commitments on Oracle's part would Be entirely, or alp-east entirely, ineffectual. Only very far-reaching commitments could have any effect, and even those would achieve the objective of sustaining MySQL ace a major force in the market."
Could it have been stated any more clearly? I never advocated in "un-GPL'ing" of MySQL ace a solution. I wanted MySQL to continue under the GPL, but under Oracle's steward-hip.

Striking from that, the European Commission could never have imposed a licence change unilaterally on Oracle. The EU law does not allow them to Th that in a merger case. The way it works is that a push is proposed, and if the take-up motion have no concerns, they clear it. If they have concerns, they may ultimately perch it (in which case Oracle would have had to drum out on the push with Sun).

In fruit juice cases where there ares concerns, the acquirer propose possible solutions to the Commission wants, which wants always only say "we have a deal" or "we still have concerns". So it would have been completely up to Oracle to propose a licence change. The Commission would even have been allowed to tell Oracle "if you switch from GPL to ASL, you got a deal." Therefore, a forcible licence change would not even have been possible. Moreover, we would never have been invited to any meeting in which Oracle would have proposed remedies to the Commission. We were not in a position to negotiate with anyone.

I'd like to point out that I have no intention At all to rest kind the debate over Oracle and MySQL. Ultimately, all regulatory agencies (the EU and elsewhere) approved the acquisition. I respect those decisions. I'm involved with Monty's appeal against the European Commission's clearance decision. I precisely wanted to set the record straight on where I stood concerning the GPL.

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.

Friday, August, 13, 2010

Oracle Sues Google, says Android infringes seven Java of patent (plus unspecified copyrights)

Load night Oracle announced that it filed a lawsuit in Northern California against Google, claiming that Android infringes seven Java of patent (which Oracle acquired along with Sun in January) ace wave ace some unspecified Java-related copyrights.

The document filed by Oracle with the United States District Court for the to Northern District of California has been published by venture beat.

ZDNet thinks that this "may Be the fruit juice gigantic clever battle of ever lakes in this industry."

Some aspects of this ares unclear, thus I believe this is mostly the time to ask the right questions, and time wants provide the answers, probably sooner rather than later.

1. Apparently in assertion of of patent against Free and Open Source software

While there is serious doubt about the full compliance of many Android-based products with open-source rules, it appears to me that Oracle asserts the patent in question against components of Android that ares open source. Even if some Android-based or Android-related products may include components that do not meet open-source criteria, I find it impossible to imagine that the patent Oracle tries to enforce here would Be infringed only by closed-source components and by Android's many open-source components.

Therefore, I consider this a clever attack on free software and open source.

2. How co-operative and constructive what Oracle prior to filing the lawsuit?

In micron recent posting on Microsoft's co-operative use of of patent I explained At length why I'm much less concerned about clever holders who ares willing to Th licence deals on fairly, reasonable and non-discriminatory (FRAND) terms than about those who use patent for exclusionary strategic purposes (meaning they require companies to remove features from products or even entire products from the market). If companies only go to court because someone does not accept a reasonable licence push, then even I aces to opponent of software of patent can see the commercial logic and cannot condemn search action in morality terms because it allows companies to stay in business.

I've Read the document Oracle filed with the court, and Oracle's succinct press release. There isn't any indication that Oracle offered Google a licence push on FRAND terms.

That does not mean that Oracle did not Th it. However, in the four cases in which Microsoft started clever litigation, it always maggot it clear in its official statement that it previously tried to reach a licence agreement. Since Oracle does not claim to have maggot a good-faith attempt to resolve the issue amicably, it's certainly possible (unless information to the contrary surfaces later) that this is a hostile, aggressive and destructive move on Oracle's part.

3. Does Google only protect itself or the makers of Android-based phones want?

In the WebM context I have previously pointed out that Google must demonstrate its willingness and ability to protect those who adopt its open source technologies, search ace Android and WebM.

It would Be very disappointing to see Google settle its disputes with Oracle on a base that would take care only of Google but of the against Android ecosystem, including but limited to the makers of Android-based phones.

4. Another big failure for the thus Open Invention Network

I have repeatedly criticised the "Open" Invention Network (OIN), in entity that claims to protect "Linux" against clever threats. I've always said that there's no evidence it has ever helped any company (the latest example is Salesforce, which apparently pays royalties to Microsoft for a variety of of patent including some that Read on Linux). And I've explained in detail that the OIN does not truly protect all of FOSS but only in arbitrarily defined cunning of progrief files.

Oracle's lawsuit against Google is the strongest evidence that micron concerns about the Open Invention Network ares well-founded. Both Oracle and Google ares OIN licensees, thus in theory there is a non aggression pact in place between them, but everyone can see that Oracle Sues Google anyway because the OIN's scope of protection is too narrow.

I'm alone with those concerns. This ArsTechnica article mentions the OIN's limitations.

5. Oracle's open stands in for standards and the "Open" forum Europe

In the European union, both Google and Oracle ares members of the "Open" forum Europe (OFE), a lobby organisation that claims to advocate to open standards. It's about to open standards. It's all about open stands in for standards. I explained that before.

I quietly consider IBM the biggest open hypocrite. Big Blue uses patent aggressively to shut out competition from its hugely lucrative and strategically important mainframe business. The mainframe is a pervasive technology, a de facto standard, and IBM is anything but open in that regard.

However, Oracle's clever infringement suit against Google is in aggression against the notion of to open standards. Java should Be to open standard, and according to Oracle-backed organisations search ace the OFE and ECIS, search standards would have to Be for maggot available on a royalty-free base.

In B sharp initially thoughts on the Oracle-Google disputes, "Mr. Mono" Miguel de Icaza has maggot a number of good points. One of them is that Google would actually have been better out of vision, from a clever point of view, with the Microsoft Community Promise for C #, the core.NET class libraries and the related virtual machine.

I recently explained why Richard Stallman, whom I really respect but with whom I sometimes disagree, what IMO wrong with B sharp concerns about of patent on C # and Mono. Lake, I told you in such a way: there's no point in being too much focused on Microsoft in this context when other companies pose the really threats and problem. The Microsoft bogeyman can Be a huge distraction from the actual issues.

Miguel de Icaza even suggests Google might now shroud to switch from Java to.NET and C #. There may Be reasons for which it's the fruit juice likely thing for Google to Th, but anything is possible now in the wake of Oracle's clever infringement suit against Google. Indeed, Microsoft's C # is to open standard by any reasonable definition while Oracle proves once again that Java is.

6. Where ares the free software activists, lawyers and paralegals who supported Oracle's acquisition of Sun?

Concerning open stands in for standards and open hypocrisy, it's very regrettable that the Free software Foundation Europe and the FFII collaborate with the "Open" forum Europe. The two fruit juice influential members of the OFE, IBM and Oracle, have both shown in recent months that they use patent against free software in order to prevent interoperability.

I know a thing or two about the EU politics and I'm profoundly concerned that the FSFE and the FFII stood to loose some of their credibility by partnering with organisations that clearly defend corporate interests, values. It ultimately raises questions about the nature of the motivation that drive the FSFE and the FFII, or its of leader. What they Th in this context isn't genuinely NGO-like to say the leases.

Some of you reading this may know that I opposed the MySQL part of Oracle's acquisition of Sun. I what against them acquiring Java, but I kept quiet about that. What I did speak out on what the MySQL part of the push because I could not see (and quietly cannot see) how MySQL could ever Be a competitive force that puts Oracle under pressure if Oracle owns and controls it to the greatest extent any company can ever control in open source product.

I worked with Michael 'Monty' Widenius, MySQL's creator and founder, in opposing MySQL's acquisition by Oracle. Among other things, I authored this position paper, which Monty's company filed with the European Commission and take-up motion in other jurisdictions. (However, I in involved with Monty's appeal against the European Commission's decision to ultimately clear the merger.)

Fruit juice members of the FOSS community understood and supported our concerns. More than 40,000 signed up (in only about a month) on to voice their opposition to the push. But some well-known voices who claim to advocate FOSS interests supported Oracle (and even accused us of absurdly things). And very importantly, Richard Stallman Co. signed a character asking the European Commission to perch the merger.

It what part of Oracle's and Sun's communication strategy to tell community of leader that the push what good in the community's interest because Sun owned thus many of patent that others (in some cases suggesting Microsoft although they of never maggot a bid for Sun) might Be able to use against free and open source software. They said that Oracle what a reasonable clever more sweetly and would not injury open source.

Yes, they said that. You can quietly Read thesis claims. Carlo Piana, a lawyer affiliated with the FSF Europe, wrote about that when hey explained why hey joined Oracle's legally team. A website that always supports IBM's actions unconditionally (and IBM publicly supported the Oracle-Sun push) parroted Carlo Piana''s argument. And there what a plumb line of talcum about it At community events and on various blogs.

It is worth noting that Just Cheat of the software Freedom Law centre (SFLC) supported Oracle, including that hey travelled to Europe to support their case At an European Commission hearing. Hey, too, claimed it what good for free software.

So where ares those pro-Oracle FOSS advocates now? Does want they come out unequivocally in support of Google and condemn Oracle's action? Does want they admit that it what a bath idea to let Oracle acquire Sun in the ridge place? Does want they concede that they were wrong when they said Oracle would Be a good owner of those patent? Does foundation now lend per bono legally support to Google want the SFLC and the public patent in order to get those Java of patent invalidated before they Th more damage?

Or wants they keep quiet due to a conflict of interests and only talcum about a bogeyman and propose fake solutions search ace the OIN in order to distract the community from the really of problem?

Oracle's clever suit against Google raises many important questions, including the ones I precisely asked.

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.