Licensing

If the market's response to the Affero GPL is any indication, I was 100 percent wrong to suggest that open source would suffer without closing the so-called "ASP loophole."

That, at least, is the feeling I'm getting reading Stephen O'Grady's excellent summary of open-source licensing, and particularly the GPL, and how it works (or doesn't) in SaaS, cloud, and other instantiations of network-based computing. Despite the fact that the Open Source Initiative approved the Affero GPL--which explicitly shuts the door on free-riding on open source in network-based computing without contributing back--few have adopted … Read more

Patents have become a minefield that inhibit software innovation, a fact recently highlighted for me in a conversation with Rob Tiller, Red Hat's vice president of Intellectual Property and assistant general counsel.

Many software patents are of poor quality and are difficult to interpret, Tiller explains, made worse by the fact that patent boundaries are often vague: a patent can even cover an invention the patent holder never conceived.

Compounding this morass, it's difficult to impossible to know if code you have written could be covered by a patent, as search methods are unreliable (and damages are structured … Read more

Update below with White & Case's response. Spoiler: they weren't happy with my interpretation of their e-mail.

White & Case, a leading international law firm, has been struggling in the face of the recession, laying off 70 associates in late 2008.

Perhaps nothing makes its struggle as clear as its attempt to drum up business by scaring prospective and current clientele into retaining its services to address the very scary open-source legal threat, as a recent e-mail sent out to a friend suggests:

From: "Rieck, Christopher" Date: April 13, 2009 8:09:09 AM PDT To: … Read more

Open source is not going away. Why should it?

That's a quote from Microsoft CEO Steve Ballmer in Marshall Phelps' new book, Burning the Ships, and it's a question that Phelps tries to answer.

In the course of doing so, Phelps portrays Microsoft as desperately striving to adapt to a new world of aggressive enforcement of intellectual property (IP), but ends up suggesting a rising IP hegemon eager to shape a new world of such enforcement.

It's not pretty.

Phelps is the man who turned IBM's patent portfolio into a $2 billion business (as he reminds the reader several times), but his goal at Microsoft wasn't to generate cash through licensing, he declares. Nor is Microsoft's new IP strategy a rehash of the old world where IP is treated as a negative right (i.e., the ability to protect one's IP from the wiles and avarice of competitors), but rather IP becomes "a bridge to collaboration with other firms."

But this is where the contradictions begin.

Phelps indicates that Microsoft cannot go it alone in the world...then points to statistics that claim 42 percent of the world's IT people depend upon Microsoft technology. Microsoft apparently has done quite well going it alone.

He further agonizes that Microsoft must expand its partnership footprint...even while identifying 640,000 vendors in Microsoft's partner ecosystem that earned more than $425 billion in revenue in 2007. It's unclear, based on his own evidence, how Microsoft is starving its partners and, indeed, Microsoft has always made much of what an impressive partner it is with 96 percent of its sales going through partners.

Phelps berates patent trolls and others for forcing Microsoft to pay hundreds of millions of dollars in licensing fees...but then goes on to explain how Microsoft's new IP strategy has his team on the road constantly signing up new licensees for patent royalties and other agreements.

The money quote comes from Nathan Myhrvold, a former Microsoft executive and arguably now the world's largest patent troll with his company Intellectual Ventures, who declares himself "shocked" by the actions of patent trolls who could "just go and buy a patent and then use it" against Microsoft.

Oh, the irony, given that this is a concise definition of Myhrvold's current business plan and, apparently, Microsoft's.

Indeed, this is where Phelps' IP strategy for Microsoft departs from its stated intent. Phelps writes:

...(I)ntellectual property should always serve the business, not be the business....Microsoft didn't need money (from its patent portfolio)--it had billions of dollars of cash in the bank. Instead, Microsoft needed to transform its relations with the rest of the industry and build collaborative relationships with other firms. So that became the focus of our new IP strategy.

This sounds impressive, and it would be if it accurately depicted how Microsoft has approached the industry with its IP. Instead, Microsoft has spent the past several years menacing the open-source community and others with the threat of its increasingly large patent portfolio, and now claims "more than 500 patent and technology collaboration deals with companies large and small around the world."

I say "menace" because Phelps nearly always talks about these agreements in light of Microsoft approaching a prospective IP "partner." If Microsoft's IP were needed to build such cooperative bridges, presumably more of these "partners" would be approaching Microsoft, rather than waiting for Microsoft's heavy knock on the door.

Novell, as Phelps highlights and which CNET recently noted, is an exception to this rule, having approached Microsoft.

As with Novell, Phelps routinely neglects to mention facts that might cast Microsoft's IP actions in anything less than a warm and glowing light. For instance, he talks up Microsoft's generous decision to share 30,000 pages of technical documentation, conveniently forgetting to mention that the action was spurred by its desire to get out from under the European Commission's antitrust eye. (It didn't quite work.)

But nowhere is Phelps' selective memory more illuminating on Microsoft's intentions for its new IP strategy than when discussing open source. Here Phelps outdoes himself, starting with his characterization of why Microsoft wanted to build a bridge to the Linux world:… Read more

The open-source industry sometimes seems like it comes straight out of a Dickens novel. Like the debate surrounding the United Metropolitan Improved Hot Muffin and Crumpet Baking and Punctual Delivery Company in "Nicholas Nickleby," I'm constantly amazed by the industry's ability to spend time determining how much open source can dance on the head of a pin. (Answer: none, because no one can ever be pure enough to pass muster with the guardians of purity.)

It's clear: while open source presents a hardy threat to open source, it pales in comparison to the threat presented … Read more

The more that Microsoft's patent lawsuit against (and subsequent settlement with) TomTom simmers in my consciousness, the more I want to boil.

I gave Microsoft the benefit of the doubt early on: I know a few of the Microsoft personnel involved in the case, and I think that they're wonderful people of integrity and intelligence.

They're also fiercely competitive, and it's becoming apparent to me that the TomTom lawsuit was designed to bludgeon one of Microsoft's biggest competitors, Linux; it was not any serious attempt to protect its intellectual property.

The Linux Foundation's Jim Zemlin captures my sentiments well:… Read more

Microsoft and TomTom have settled their patent dispute, including claims related to the FAT file system and Linux. But the rest of the open-source world, which could be affected, isn't ready to lie down and accept Linux's possibly besmirched reputation.

Red Hat, for its part, declares that "without a judicial decision, the settlement does not demonstrate that the claims of Microsoft were valid." And Pamela Jones of Groklaw, a highly influential open-source legal blog, deprecates Microsoft's claims ("What? You thought Microsoft's spin on things was always gospel?"), citing the Software Freedom Law … Read more

TomTom, sued earlier by Microsoft for patent infringement related to GPS technology and TomTom's implementation of Microsoft's FAT, or file allocation table, technology in Linux, is fighting back. Unfortunately, its countersuit relates to four of its GPS patents that it claims Microsoft infringes, not the Linux patents that have the open-source community up in arms.

Neither side, in other words, is backing down. Despite my earlier concern that TomTom couldn't afford to fight Microsoft's allegations, it looks as if TomTom has found both the money and the will to fight.

I just wish that it were … Read more

The blog Confused of Calcutta recently raised an interesting topic: Should software vendors take more responsibility for their software? Should we sign up to "tenancy agreements" by which we agree to stand by our code and ensure it works well with others?

It's an intriguing proposition, one which I'm sure enterprise IT buyers (or, rather, their legal departments) would welcome.

I doubt it will ever happen, however, and I'm not sure there's much incentive for a vendor to introduce such licensing commitments. No one buys software because it comes with a kinder, gentler contract. … Read more