IBM and Sun: Using the system vs. beating it

Through Technorati, I was led to a quickly sprouting tree of threads regarding my recent commentary on Sun's 1,600 patent deal, and then my colleague Dana Blankenhorn's follow-up to that. First, I think I was able to follow all of the various branches to their ends and want to say that I appreciate some of the compliments.

Through Technorati, I was led to a quickly sprouting tree of threads regarding my recent commentary on Sun's 1,600 patent deal, and then my colleague Dana Blankenhorn's follow-up to that. First, I think I was able to follow all of the various branches to their ends and want to say that I appreciate some of the compliments.

Second, there's an uber-issue here that, to me, is the herd of elephants in the room (in other words, not just one elephant). Everywhere you look, companies who are beholden to their shareholders before anyone else are leveraging the "systems" around them to their fullest advantage. Yesterday, in a blog entry (see Rage against the patent machine, but is anybody listening?), I talk about how we can't expect companies to suddenly turn into philanthropists when they've got shareholder value to protect. None of the companies being discussed in the various threads triggered by Sun's 1,600 patent announcement have sacrificed shareholder value in the name of altruism.

No single company, for example, is granting blanket protection to all developers for all of their patents. IBM's grants only involve 500 of the patents (some of which whose relevance to open source has been questioned) in its patent portfolio, which is thousands of patents strong and generates $3B in revenue per year. Sun's patent grant -- which Sun claims are 100 percent relevant to open source developers (any reality checks on that out there?) -- covers more patents (1,600), but doesn't go as far as IBM's does in covering more open source licensees. Looking at the entire patent portfolios of each company, both offerings are essentially restricted offerings and neither is the promised land for which many are clamoring. As a side note, if the two oil-and-water worlds of open source and IP-laden proprietary software are going to be legally bridged by the patent holders, that bridging has to start somewhere and both IBM and Sun should get some credit for dipping their toes in the water.>

With respect to patents, IBM, Sun, and many other companies continue to maintain and derive significant shareholder value from patents, and we shouldn't expect to see that change any time soon (as long as the patent system stays the way it is). These companies are not beating the system. They're using it to their best and fullest advantage. So, one elephant in the room is the patent system. Not IBM, Sun, Microsoft or anybody else. Accusing patent holders of malice is like saying an NFL coach is a miscreant for cleverly managing the clock in a way that keeps the ball out of the competition's hands.

By the way, I'm not saying whether I'm pro or con patent here, or that I'm a believer or disbeliever in any of these strategies. That's not particularly relevant to reality-checking the so-called deviant behavior that any patent holder is being accused of. You may not like the rules and find it offensive when a company plays by them, but that's a lot better than when they illegally screw with the marketplace. Bottom line on patents: If you want to see change, then that change starts with the patent system first. Since there's no activity on that front at all, you'd better call your Congressperson.

Now, for the other elephant in the room -- the Open Source Initiative. This is the organization that, theoretically, is regarded as true North for many members of the open source community. When the OSI first began its practice of blessing multiple open source licenses with its imprimatur (57 at last count), it may have been the equivalent of opening Pandora's Box. Should it have come as any surprise to the conspiracy theorists that commercial enterprises leveraged that system to its fullest by creating project-specific licenses that protected their "prurient" interests while allowing them to tap the great karma of open source?

While a certain amount of disappointment with those who are working the OSI system is understandable (and by the way, Sun isn't the only company that worked that system), if you're one of those demanding action, then you should be demanding it from the OSI and not the companies playing by the OSI's rules. It's no wonder the true-to-the-GNU General Public License (OK, and the Lesser GPL) Free Software Foundation's president Richard Stallman and the true-to-no-single-open source license OSI founder Eric Raymond, who were once friends, are on the outs with each other and that the two organizations have had difficulty finding common ground. I experienced "the rub" first hand when CNET Networks director of editorial development Abby Flores and I worked behind the scenes to get equal representation from both organizations at the Open Source Awards (CNET is the parent company to ZDNet -- the initial media host of the awards). Sadly, the two could not come to terms and it was an OSI-only event, one of my great regrets.

As with taking a position on patents, none of what I've just said is a reflection of which belief I subscribe to -- a single license or multi-license philosophy. At a cursory level, I understand the arguments for both. But let's at least be honest about the conditions that allowed the row over Sun's recently OSI-approved Community Development and Distribution License (CDDL, pronounced "cuddle") to happen in the first place.

As with the patent issue, if change is what you seek when it comes to open source license proliferation and the divisions within the open source community, you're best off not waiting for those who must protect shareholder value to voluntarily forfeit their rights within the system. You'll have to go after the system itself. Fortunately, that opportunity now exists as a result of the recent restructuring of the OSI (which, by the way, this blog broke the news on). As a result of that restructuring, the OSI's new management is seeking input from the open source community on what needs to be changed, and will hold several open forums throughout the year (most likely at some of the open source events) where you will be able to attend, listen, and be heard.

Finally, my mail and the blogosphere are scattered with highly polarized opinions over Sun's introduction of the CDDL. Some say it's just another example of the license proliferation that plagues us (and Sun is to blame, of course). Others say that the CDDL's language (and ancestry, which can be traced to the Mozilla Public License) could be the first of many important steps towards consolidating licenses and reducing such proliferation. I don't have nearly the legal chops that one needs to analyze the CDDL in the context of all the other OSI-approved licenses. So, if you consider yourself to be one of the handful of people that do, please chime in using our TalkBalk below.


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