Licensing

According to SYS-CON, Google's cloud computing patent portfolio, and specifically its patent application for "Encoding and Adaptive, Scalable Accessing of Distributed Models", gives it a "multi-year lead in cloud computing." Could it also give it a club to pummel would-be competitors?

As SYS-CON's Stephen Arnold suggests:

Google can, with the deployment of software, deliver global services that other companies cannot match in terms of speed of deployment, operation, and enhancement...(T)his patent document is an indication that Google can put its foot on the gas pedal at any time and operate in a … Read more

I was supposed to attend the recent DLA Piper Technology Leaders Summit, but was unable to do so due to work and family commitments. Perhaps I should take heart, however, as after reading through JasperSoft CEO Brian Gentile's commentary on the day, I may not have liked what I heard.

Gentile doesn't suggest that the summit was poorly organized or that the speakers didn't have the right pedigrees, but rather that the summit apparently broke little or no new ground. I don't fault the conference organizers for this: I fault the chosen participants, who don't get paid to innovate.

Take Ray Ozzie, for example. Microsoft's job is simple: extend its desktop dominance for as long and as profitably as it can. That's it. Anything the company says about the Web or something disruptive invariably must tie it to its existing cash cows, Windows and Office.

It's little wonder, then, that Microsoft's biggest "innovation" of the past few years is not the Surface, but is rather a content-management system called SharePoint that (gasp!) lets users connect Office documents through Windows Server(s). Microsoft has made well over $1 billion from this invention, and will undoubtedly mint billions more. No, Microsoft has nothing new to tell us.

What about the cloud vendors? This group basically consists of next-generation Microsofts that hope to do what Microsoft did, except instead of distributing packaged software they hope to centrally manage software so that customers will have even less choice than under the Microsoft regime.

Where can I buy some of that?

Where was open source in this discussion and throughout the summit? Open source, which enables the cloud and promises to topple the monopolies of yore while unwittingly enabling the monopolies of the future?

Apparently it was largely ignored until Jonathan Schwartz, CEO of Sun, took the podium. Of Schwartz's presentation Gentile writes:… Read more

Horacio Gutierrez, Microsoft's intellectual property counsel, indicated that Microsoft has finally seen the open-source light in a recent interview with CNET. Demonstrating that Microsoft has finally learned that it can't fight open-source gravity, Gutierrez suggests, "Today, but increasingly in the future, we are all going to be 'mixed source'," meaning Microsoft and everyone else will balance open source with some proprietary element to their business.

I actually think the war between proprietary and open source is a thing of the past.

In fact, we're already there. Even Microsoft. But it's nice to have Redmond admit it.

What was perhaps less pleasant, and completely unnecessary because Microsoft lacks both the will and the strategic interest in pursuing it, was Gutierrez's saber-rattling over Microsoft's patents:

While Microsoft is patient, Gutierrez indicated that Microsoft's patience is not unlimited. "If every effort to license proves not to be fruitful, ultimately we have a responsibility to customers that have licenses and to our shareholders to ensure our intellectual property is respected," he said.

Yes, you do, Microsoft. Fortunately, the more Microsoft uses open source within its products, the less it trots out this tired refrain from the past.

The fact is that Microsoft has yet to find a way to call out its intellectual property (IP) in things like Linux without stumbling over all of the IP that it, in turn, has "borrowed" from others, including the open-source world. Plus, Microsoft can't sue open-source communities without bumping up against companies like IBM with much broader patent portfolios than its own. If Microsoft sues, Microsoft loses.

Indeed, I'd argue that one primary reason for shacking up with Novell wasn't Microsoft's patent portfolio, but rather Novell's: Novell had key IP that goes to the heart of Microsoft's Office business. The Linux patent covenant was a way for Microsoft to clean up its own patent violations. Funny, that. When I was at Novell my team in the CTO's office never worried about a patent lawsuit from Microsoft.

But that's just the way the modern software world works: it's such a thicket of conflicting IP claims that the only rational (and workable) solution is to overlook competing claims.… Read more

Over the weekend, Larry Lessig penned a cogent argument for a common-sense reading of copyright law. The problem, he writes, is that in our attempts to quash peer-to-peer file-sharing (stealing), we're wreaking a huge amount of collateral damage on those that remix content.

In other words, all piracy is not created equal. Some, like the remixers, should be protected by US Fair Use doctrine:

We are in the middle of something of a war here -- what some call "the copyright wars"; what the late Jack Valenti called his own "terrorist war," where the "… Read more

In case you're worried that you haven't been squeezing enough money from your patent portfolio lately, Law Seminars International has a deal for you:

Forget about trying to make money by selling actual products into a tight economy. Just sue your competitors! At worst, you can use scare tactics against the foolish:

Like land speculators, patent investors are investing billions of dollars to amass assets that they intend to monetize for a substantial return. This massive influx in available capital is providing patent owners with increasing opportunity to make money from their inventions, as well as allowing companies … Read more

NetworkWorld nails it with an article describing how proprietary licensing encourages companies to spend time protecting their past investments, rather than focusing on the future. While the article deals with Microsoft's ongoing legal battles with Novell over WordPerfect (Remember that?), the principle is broadly applicable:

Software vendors and their customers are better served when vendors concentrate on the Next Big Thing rather than protecting their aging (or even dead) technological turf. Let's hope that open source software licensing makes that happen.

How does open source apply? Open source, after all, doesn't change a company's desires to protect its intellectual property. It does, however, significantly change what "protecting intellectual property" means, and it dramatically changes how open-source vendors get paid vis-a-vis their proprietary counterparts.

Consider what Red Hat CEO Jim Whitehurst told me in a recent interview:

People forget that software can be a multi-round game. Most software companies get customers locked in and they're stuck. Eighty percent of commercial software functionality is created to drive an upgrade cycle; in other words, to serve vendor needs, not customer needs.… Read more

Some are apparently up in arms that Google is refusing to allow Chrome developers to use its trademarks and the comic book it released to help explain Chrome. To these and others that equate open source with "up for grabs," please pay attention:

Open source is governed by US intellectual property law. It is not above the law.

For those who mistakenly feel that open source is a stick-in-the-eye to "The (IP) Man," you're wrong. Open-source licensing depends upon and indeed presupposes copyright and trademark law. Without copyright there is no copyleft.

Clint Boulton, whose … Read more

Microsoft has been criticized in the past for how it manages CodePlex, Microsoft's "open source project hosting site" (emphasis mine). This time, as The Register reports, Microsoft is hosting code that can only be run on the Windows platform.

This is not, of course, a violation of open source. Plenty of projects on Sourceforge will run on only Linux, or some other operating system.

No, the problem here is that Microsoft is restricting these projects to Windows by license, and not merely be technical capability.

In at least one instance, that of the Microsoft Extensibility Framework (MEF), Microsoft switched the license from its Windows-only Microsoft Limited Permissive License (Ms-LPL) to the Microsoft Public License (Ms-PL), an Open Source Initiative-certified license, under pressure from Miguel de Icaza and "community feedback." The reason given for putting the code under the MS-LPL in the first place is lame, however:… Read more

I read Richard Stallman's commentary on cloud computing in the UK's Guardian. Stallman is full of warnings about cloud computing:

One reason you should not use Web applications to do your computing is that you lose control. It's just as bad as using a proprietary program.

But he completely neglects to mention that he had a chance to seed the cloud, which is largely built using open-source software, with an upgraded GNU General Public License (Version 3), and he demurred. Richard Stallman and the Free Software Foundation failed to protect the cloud when they had the chance, … Read more