The Open Road

Open source means different things to different people. It can be a software development methodology, a distribution technique, or a marketing gimmick. Could it also be a way to minimize patent infringement damages?

Brian Prentice, a research vice president with Gartner's Emerging Trends and Technologies Group, speculates that it just might be. Google has been actively developing open-source alternatives to leading proprietary products, like Google Wave to compete with Microsoft Outlook and SharePoint. As Prentice indicates, Google has also been publicly advocating passage of the Patent Reform Act of 2009, which might have a lot to do with its open-source strategy.

Here's why.

The proposed legislation alters the way damages are calculated in infringement suits to be "calculated as the price of licensing a 'similar non-infringing substitute in the relative market.'" Now if that alternative is a free, open-source piece of software, then damages drop to zero, as Prentice notes:

Does that mean that free open source products can now be considered substitutes in a relative market? I've been trying to play the scenarios out in my head. If Google Wave, hypothetically, infringes a patent that IBM holds and they're found guilty of doing so, could they simply claim that the relative market value is zero because there are existing free OSS mail and IM solutions? Once Google Wave is shipping, can other organizations infringe on patents Microsoft holds relative to Exchange comfortable in the knowledge that Wave creates a zero dollar relative market value for collaboration?

This is incredibly insightful on Prentice's part, and amazingly shrewd if, in fact, Google is playing this game. It takes open-source advocacy to an entirely new, Sun T'zu-esque plane.

Martin Fink of Hewlett-Packard first started talking about the value of using open source to commoditize a competitor's core offering through open source back in his 2002 book "The Business and Economics of Open Source." But Prentice's idea takes Fink's argument and runs with it...at Usain Bolt speeds.

If true, The Register's question--"Is Google spending $106.5m to open source a codec?"--calls up a different response than the author of that article gives. Maybe $106 million is cheap compared to the cost of getting hit with video compression patent suits (from Microsoft, Apple, and others), if Google open source's On2's video compression codecs.

Google contributes to open source for a variety of reasons, not the least reason being that it recognizes open source is an efficient way to create community around its products. But perhaps Google has this more subtle, and sophisticated, reason as well?

Brilliant.

Follow me on Twitter @mjasay.

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: xxxxx
Subject: Open Source Decision - New Legal Penalties on Developers?

Hi Dave,

Open-source licensing--the innovative (if controversial) tool that makes source code available to the general public on certain conditions--is a growing movement most closely associated with Linux and other major software products.

The movement may well have been given a great boost by a recent court decision that makes it easier to enforce open-source licenses. But the unintended side effect may be that many software developers who incorporate bits and pieces of open-source code in commercial programs will now face greater risks of significant legal penalties for doing so.

Last December, a decision by the U.S. Court of Appeals for the Federal Circuit in the matter of Jacobsen v. Katzer held that breach of an open-source license can support a claim for copyright infringement--with associated remedies. The Court's ruling may also require recognizing that the open-source copyright owner has standing to sue downstream licensees for copyright infringement....

"Following this decision, commercial software developers should be even more cautious of incorporating any open-source code in their offerings. Potentially far greater monetary remedies (not to mention continued availability of equitable relief) make this vehicle one train to board with caution."

This is an interesting perspective, one that explicitly cuts against the generally positive perspective on the lawsuit that Mark Radcliffe and other experts on open-source law have suggested.

Indeed, legal expert Larry Lessig calls the Jacobsen decision "huge and important," and explains the appellate court's finding in very different terms than White & Case:

In nontechnical terms, the court has held that free licenses such as the (Creative Commons) licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you're simply a copyright infringer.

This is the theory of the (GNU General Public License) and all (Creative Commons) licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

Does that sound dire? I don't think so, either.

No, it simply means that White & Case's clients can't pilfer from the open-source community without contributing back. Since when is this something to fear?

So while it may be good business for White & Case to spread FUD (fear, uncertainty, and doubt) within its clientele to drum up business in a weak economy, the case it references is a big win for clarity around open-source licensing. This is something to celebrate, not fear.

It's also a reason to retain a different law firm, one that recognizes the opportunities in open source and isn't fixated on risks mostly of its own invention.

UPDATE: Jonathan Moskin, a partner at White & Case, responded to this post with the following:

As we explained in our e-mail to CNET, this decision may have given the open-source movement a great boost by making it easier to enforce open-source licenses. The purpose of our e-mail was to spark meaningful discussion with CNET and other publications on the issues in the decision, of which Mr. Asay was most certainly aware and which would have been clear to your readers, had the e-mail not been selectively edited to remove the invitation at the note's end.

For those who are interested, I actually could quote the e-mail in its entirety, and it would only augment my argument. I apologize to Mr. Moskin, if I misrepresented the intent of his e-mail: I was taking the words at their face value, and as an open-source advocate, I don't appreciate that value very much.

It is absolutely the case that there are legal risks in open source, but the same is 100 percent true of proprietary software. Indeed, the same risks that Mr. Moskin points out in open-source software exist in proprietary software.

Regardless, I apologize if I misread his e-mail. I'm also sorry if I seemed callous to those at his firm who lost their jobs. Unemployment is a terrible thing. I wasn't in any way trying to minimize it and apologize if it seemed that I did so.

Follow me on Twitter @mjasay.

We're used to patent trolls being shifty little bozo operations like Acacia Research that serve no useful purpose beyond proving that some life forms never evolve. Sometimes, however, patent trolls come in larger sizes and have otherwise legitimate businesses. Such is the case today with Trend Micro's apparently specious lawsuit against Barracuda Networks and, indeed, the entire open-source community.

As Justin Mason, vice president of the Apache Software Foundation, notes:

Trend Micro's actions are clearly an attack on free and open-source software and its users, as well as on Barracuda Networks. The '600 patent covers a trivial method, one which was obvious to anyone skilled in the art at the time (the patent was written), and should be rendered invalid as soon as possible.

Unfortunately, our patent system only makes sense on paper. Once it hits the courts, all bets are off. This is why repudiating silly claims like Trend Micro's is so important, and why a collective response is critical.

Here's what happened in a nutshell:

I received this update from Sun Microsystems on Tuesday on the ongoing ZFS patent litigation with NetApp. While colored by its source, the news seems positive for Sun (and, given the importance of ZFS, for the open-source development community). Sun has succeeded in getting the venue changed to California and it appears that its public request for examples of prior art have yielded fruit.

What follows was sent to me by Sun:

As of Friday, December 14, Sun has filed reexamination requests for three Network Appliance patents as part of its response to a lawsuit initially filed by Network Appliance against Sun on September 5, 2007. This follows the agreement last month with Network Appliance to transfer Network Appliance's lawsuit from Texas and litigate it along with the case Sun filed in California. The motion to transfer was filed on November 21 and the cases are now assigned to a mutually agreed upon judge. With each company being headquartered in northern California and the majority of inventors and innovation in dispute originating in California, it makes sense for this case to be litigated in this jurisdiction. We are pleased that Network Appliance agreed to Sun's request and retracted its imprudent choice of venue for this litigation.

... Read more

Victor Keegan of The Guardian asks an important question for today's market of near-disposable IP: how long should we allow copyright to endure? When business models increasingly revolve around immediate monetization, does it make sense to hold copyright for 50 to 70 years after the creator dies?

It is curious that there is so much pressure to extend copyright in an internet age defined by the willingness to share knowledge freely, ranging from Wikipedia to the genome project. The reason? Producer lobbies are far more powerful than difficult-to-organise consumer ones.

I'm somewhat biased in this - after all, my understanding of IP came of age under the tutelage of Larry Lessig in law school - but I believe the desire to extend copyright interminably bodes ill for both consumers and creators of intellectual property. That is, provided we actually policed it, which we fortunately don't (or don't strictly) [PDF].

As Keegan points out, and which I've noted before, we don't really have a "respect for IP" problem that goads us into extending copyright. It's just that our producers are still tweaking business models for a digital age that recognize the ease of copying and capitalize on this, rather than fear or shun it:

It's fascinating to see how blogs are being used these days.

On Wednesday, Dave Hitz, co-founder of NetApp, used his blog to explicate the company's reasons for suing Sun Microsystems over ZFS patent infringement. On Thursday, Jonathan Schwartz, CEO of Sun, fired back using his own blog, telling a very different story from Hitz's.

And, when I asked NetApp to respond to why it had chosen to respond to Sun now, rather than when Sun announced it was open-sourcing ZFS, Hitz replied...in a comment to my blog.

This is a very new world we live in. It's also one that Schwartz is convinced open source will win, as he suggests (in his blog):