Apache falls victim to OASIS patent shelter

Apache falls victim to OASIS patent shelter

Summary: Ever since a debacle with ebXML (subsequently diffused) and, later, the way the Web Services Interoperability organization (the WS-I) selected Organization for the Advancement of Structured Information Standards (OASIS) as the venue for "ratifying" certain Web services standards (as opposed to going through the more IP-progressive World Wide Web consortium -- the W3C), I've been meaning to out OASIS for what I think it really is: a patent shelter.

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TOPICS: Open Source
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Ever since a debacle with ebXML (subsequently diffused) and, later, the way the Web Services Interoperability organization (the WS-I) selected Organization for the Advancement of Structured Information Standards (OASIS) as the venue for "ratifying" certain Web services standards (as opposed to going through the more IP-progressive World Wide Web consortium -- the W3C), I've been meaning to out OASIS for what I think it really is: a patent shelter. [Update 7/13/05: The WS-I has officially objected to my statement that it was the entity responsible for selected OASIS. For details and a clarification, see my Talkback]. ebXML, by the way, is an international e-commerce standard that was designed by IBM and Sun in record breaking time at the request of the United Nations. 

Whenever vendors need to collaborate on something that they hope the rest of the industry will regard as a standard (open or not), they need to do it under the auspices of some sort of intellectual property (IP) agreement -- an agreement that basically lays out the ground rules for contributing IP to the standard and what if any rights can be asserted by the contributors after the standard is complete.   So, when vendors get together, their choices are to draft a new agreement that everybody has to work with, or turn to one of the existing IP regimes.  "IP regimes" is industry insider talk.  It refers to any of the existing organizations that already have an IP framework in place under which vendors can begin collaboration on a standard.  One advantage of turning to an existing IP regime is that most of their legal frameworks are well understood by the many vendors in the industry.  Not only are they well understood but, by turning to an existing regime, vendors don't have to start a new, stand-alone legal framework from scratch.  They can short-cut the painful process of drafting new legal documents and take advantage of some of the organizational  infrastructure  (staffs, web hosting, etc.) that the existing regimes have to offer. 

Examples of existing IP regimes are the W3C, the Java Community Process (JCP), OASIS, the Internet Engineering Task Force (the IETF), the ISO (International Standards Organization), the WS-I, and ECMA International.  Although virtual, some consider  open source licenses such as the GNU General Public License (the GPL)  to be an IP regime as well (this, however, gets into the netherworld of copyrights vs. patents and I won't be going there, for now).  All of these organizations have boilerplate legal frameworks that their members can use to initiate a project with the hopes that the result of that project will get widely adopted (aka, a standard).  The argument over how open a standard is often focuses on which of the IP regimes it is listed under and how stringent the boilerplate legal framework of that IP regime is.   Not all IP regimes are created equal and vendors looking to start a new project will often pick a regime that's best suited to their business goals.  Those goals can involve everything from the rights they want to maintain once a standard specification is completed to how quickly they want to get the standard ratified.  The W3C and the JCP, some vendors argue, involve way more overhead than do organizations like OASIS.  The more overhead, the longer it takes to complete the standard.  The less overhead, the more quickly a few vendors can get down to business and iron something out.  OASIS fits more into this latter category than does the W3C or the JCP.  ebXML, for example, was finished in 18 months -- regarded by many as record breaking time.  It was done under an OASIS framework.  Several OASIS-based Web services standards may have happened even faster.  

But, in addition to speed, OASIS also offers an incredibly patent-friendly environment.  It's the choice of vendors who want to get some specification out into the market -- one that has the imprimatur of OASIS on it -- without being bound to commonly accepted rules of openness (beauty, by the way, is in the eyes of the beholder.  See Public discourse underway over the definition of "open").   Unlike the imprimatur of the W3C, OASIS' imprimatur gives off the feeling of the specification being some open standard when, in reality, the standard may be nothing of the sort.    Why do I say OASIS is a patent shelter?  Because, at the end of the day, specifications bearing the OASIS imprimatur (one that deceptively communicates "this is an open standard") can still end up with unbearable encumbrances that could come back later to haunt those who adopted them under the false pretense that they were as open as standards from other organizations such as the W3C.  In fact, the patent policies of the two organizations were a central issue to the competition between two Web services specifications (BPEL4WS and WSCI)  for doing the same thing.  Each was backed by a different group of vendors with the WSCI/W3C camp claiming to have the more open, and therefore more broadly adoptable of the two specifications.

So misleading is the OASIS imprimatur with respect to OASIS' patent policy that it sparked a boycott by several open source and free software advocates earlier this year.  And now, perhaps for the second time (but this time a bit more public), the OASIS effect is being felt in open circles.  According to a report in InfoWorld, the Apache Foundation has hit a roadblock in implementing WS-Security -- one of the many Web services specifications that the WS-I made a priority and that was subsequently produced under the auspices of OASIS' patent policy.  Wrote report author Paul Krill, "Although WS-Security is available for implementation royalty-free, it still must be licensed from Microsoft and IBM. Apache has raised concerns about this, mostly pertaining to a non-transfer clause that appears incompatible with open source licenses that allow for uninhibited transfer of technologies, Apache officials said."  The story goes on to point out that WS-Security isn't the only specification with the OASIS imprimatur that requires licenses to be executed with IBM and Microsoft.

This of course cuts to the chase of what it means to be open.  Some believe that royalty-free -- the promise of never having to pay royalties in order to use the standard -- is open enough.  Others say that it's OK for the business terms behind a license to fall to the more patent-holder flexible "reasonable and non-discriminatory" or RAND terms -- terms that OASIS permits.  I say more flexible because, even though many vendors attach a RAND license to their patents without ever charging royalties, the door is left open to do so in the event they change their mind (particularly with new licensees because pre-existing ones may have negotiated RF terms that survive any more sweeping changes in posture).  According to open source advocates, RAND licenses have another major drawback -- that of impeding open source altogether.  In its call to action to OASIS, 29 leaders of the open source community said "This patent policy (available, grouped together with other unrelated legal issues, here) permits standards to be based upon so-called 'reasonable and non-discriminatory' patent license terms--terms which invariably and unreasonably discriminate against open source and free software to the point of prohibiting them entirely."

Quite often, the frequent analyses of the many terms say nothing of the more subtle  encumbrances that can get under the skin of the open left (or is that right? I can never tell with this debate). For example, if I have to execute a license with a patent holder, are there circumstances under which that patent holder can revoke my license -- circumstances that aren't quite in the spirit of "open."   As noted earlier, one such encumbrance -- one that gives open source advocates serious indigestion -- is the non-transferability that comes with licenses that must be officially executed with their licensors.  Every licensee must execute their own license with the licensor.   Such non-transferability is the antithesis of copy-left licenses like the GPL (again, the GPL applies strictly to copyrights and not patents) and runs counter to the open source world's idea of open.  This isn't the first time the Apache Foundation and the issue of non-transferability have intersected with each other. When, during IETF MARID's deliberations over the viability of sender authentication (a standard that could have helped combat spam), it became apparent that a Microsoft  patent might come into play -- one with non-transferable terms -- the discussions suffered an irretrievable breakdown.  The Apache Foundation was one of the first to take umbrage with Microsoft's disclosure and pull its support.

Other encumbrances include onerous IP cross licensing terms, sometimes couched in terms of revocation or non-repudiation. For example,  one open source license that gave licensors a virtual license to steal IP from licensees was the one that was originally assigned to the Eclipse integrated development environment -- the IBM-authored (and Open Source Initiative-approved) Common Public License.  While many open source licenses include MAD terms -- those of mutually assured destruction in the event that licensees or licensors breach the license's terms or attempt to sue one another for misappropriation of relevant IP --  the CPL went one step further than most such terms by invoking mutually assured destruction if a licensee sued the licensor over non-relevant IP.   So, although there were never any reports of it happening, the license cleared a legal path for IBM (the original licensor of Eclipse) to misappropriate any of the IP of Eclipse licensees (even if it wasn't relevant to Eclipse) without fear of reprisal.  If an Eclipse licensee sued IBM for misappropriation of IP -- even of IP that wasn't relevant to Eclipse -- it lost its license to Eclipse.  While the Eclipse Foundation has published a new license (the Eclipse Public License) that falls back to more commonly accepted terms of mutually assured destruction, the CPL has recently turned up on some of Microsoft's open sourced code (take note).

So, while open source advocates have been quick to criticize RAND terms, it's not as if the open source world doesn't have a few of its own skeletons in its licensing closet.  

This brings me full circle back to OASIS and my assertion that it's a patent shelter.   As I implied earlier,  open is in the eyes of the beholder.  Some want licenses that are fully and completely unencumbered--copy-leftable and transferable where appropriate.  Others just wish we could get rid of the legacy of RAND licensing that haunts supposedly open standards and, at the very least, replace them with royalty-free terms (not necessarily open, but at least a big step in the right direction).   One example of where patent regime discussion is sufficiently vague is in what's required and what's permitted.  Thanks in part to its recently revamped IP policy, OASIS now has a boilerplate framework for developing royalty free standards.  Actually, two of them.   But that same patent policy doesn't require or insist on the application of RF terms to all OASIS standards (and I use that phrase very loosely) moving forward.  Instead, it still preserves the option to develop RAND-based standards.   In an internal e-mail to OASIS members, OASIS president and CEO Patrick Gannon wrote "We have not suddenly adopted a RAND policy. The RAND baseline was part of the OASIS IPR Policy that was approved five years ago....To completely eliminate RAND as an option (as the signers of the Rosen petition advocate) would deny those OASIS members who choose to work under those terms their current rights."  Rights that protect patents.   Rights that OASIS members will continue to invoke.

There are may subtleties to standards setting that are not well understood by the consuming masses.  One of those is the OASIS imprimatur which isn't just wrongly taken by many to mean that the specification in question is an open standard, but is also abused to make a specification seem as such in vendor presentations.  It would take many hands to count the number of times that I've experienced the cavalier use of the phrase "OASIS standard" in vendor briefings and at trade events.  Invariably, when it's a one-on-one briefing,  the presenter assumes I'm unaware of the subtleties.   The backtracking starts the minute I say, "But wait a minute." 

Three years ago, I made repeated attempts to contact Gannon about the patent shelter-like nature of the organization he heads out of Billerica, MA.   At the time, I had adopted a fairly aggressive stance in my columns on the issue,  particularly in relation to the direction that Web services standards were taking.  Not surprisingly, those calls were never returned.  My opinion drifted to the back burner where it has been sitting these last three years.  With InfoWorld's recent story, I decided it was time to finally bring it back to the front burner and get it done. 

Topic: Open Source

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  • Standards for standards

    Clear essay on a complex topic.

    You do acknowledge that your criteria for evaluating standards are personal frequently, but sometimes you make statements that show you think there's a single standard for standards.

    For example:

    But in addition to speed, OASIS also offers an incredibly patent friendly environment. It's the choice of vendors who want to get some specification out into the market ? one that has the imprimatur of OASIS on it ? without being bound to commonly accepted rules of openness (beauty, by the way, is in the eyes of the beholder).

    OASIS is thus a means of evading the true approach to setting standards, and not a mechanism that suits the goals of the companies doing the work.


    You also make the assumption that the only reason for using OASIS is business advantage, I think.

    But what of Sun's point about meeting overarching goals for the standard?
    There are problems with Sun's implementation of the goal, but maintaining what the originator thinks of as the purity of a standard is a rational intention, both for protecting its investment and as defense of an ideal.

    And with so much litigation, can you blame a company proposing a standard for assuring that it will have some say in its exposure, whether individually or as part of an organization?

    There's also the assurance of influence on the future development of the standard. The originator will want to be certain not to be damaged commercially in future by the actions of competitors.

    The common theme in each of these examples is protection. Even if the standard never makes a nickel for the originator, there are other, benign motives.
    Anton Philidor
    • Response to Anton

      Anton, thanks very much for contributing to our TalkBacks.

      First, this morning, I linked the story to a recent blog I wrote about the definition of "open." I should have done so last night, but I forgot that I had actually posted it here on ZDNet. I thought that my only version of it was on a blog by IBM's Tom Glover and IBM's blog site has been down for three days now. So, please refer to that for my take on defining open.

      Second, your "protection" comments raise two issues.. one where the inventor wants to ensure that the original intent endures. The other, I think, is the use of patents defensively. I want to be clear about something. I actually don't object to OASIS' patent policy the way the open source community does. What I object to is how the term "OASIS standard" is casually tossed around as though it always means that the standard in question is like a W3C standard. This is separate from the issue of patent holders wanting to preserve their rights (for whatever reasons). If companies want to preserve their IP rights (and if, through whatever other discourse, those IP rights are deemed to be legitimate ... a big "if" these days), then more power to them. All I ask is they not be shy about their intentions and, in doing so, not hide behind an imposter of a standards imprimatur (bottom line: the OASIS imprimatur stands for nothing since it can stand for anything).

      Absent of a global authority on standards organizations -- one that publicly certifies imprimaturs for what they really mean so the public clearly understands any associated risk -- my wish is that vendors would not fall back to the bare minimum disclosure that's required by whatever IP regime they choose to work under. This by the way, is routinely the excuse that's used when I question vendors on what their intent is when they're maintaining their IP rights. They may tell me, behind closed doors, that they have no intent of charging royalties or that that "royalties do not fit their primary business model of high volume shrink wrapped software." But when I ask them, well, if you don't plan to charge royalties, then why not disclose that in the specification's documentation? The answer is invariably because they only do what the IP regime requires them to do. Well, of course. Uh, doh.

      So, by abiding by the "so-called" rules, you just so happen to reserve the right to charge royalties later, if you so decide. There's really no reason other than their desire to preserve their rights, that vendors can't go beyond an IP regime's minimal disclosure requirements and say "here's exactly what we intend to do with our patent rights." OASIS and other patent regimes certainly don't prevent such disclosures (nor, not coincidentally, would a patent shelter require them ). To me (and I recommend that others do the same), as long as vendors operate behind the cloak of such secrecy (a cloak that OASIS offers), I urge extreme caution in the adoption of the so-called standards that can be found under that cloak.

      So, one more time.. if vendors want to maintain their rights, more power to them. Just be up front about it. Let us know what the intent is. Be open about it. Don't hide behind purposely vague legalese.

      To Patrick Gannon and OASIS, although I don't think it's enough, at the bare minimum, I suggest you come up with different colored "badges" that get prominently displayed with the specfications that emerge from your regime. For example, OASIS RF (yellow, caution), OASIS RAND (red, danger), and, if you should ever really have one, OASIS OPEN (green, fully unencumbered). Of course, if OASIS did something like that, it's membership dues would dry up pretty quickly. Guess why.
      dberlind
      • Are you sure you don't object?

        Seems faux naif to assert that:

        I actually don't object to OASIS' patent policy the way the open source community does. What I object to is how the term "OASIS standard" is casually tossed around as though it always means that the standard in question is like a W3C standard.

        but then recognize:

        Of course, if OASIS did something like that [badges for different degrees of openness], it's membership dues would dry up pretty quickly. Guess why.

        If following out your recommendation would do damage, then you must object to the situation that you want to damage.

        Anyone who cares about such issues would learn of OASIS' policies, and know they would have to check the materials to determine what kind of openness has been authorized. Your suggestion of badges appears, therefore, only to be making target identification easier. And to encourage hostile action against OASIS.
        Anton Philidor
        • What I object to.

          Anton,

          My position has always been clear. That IT buyers should build strategies that focus on the use of open, unencumbered standards to ensure them the most freedom, flexibility, and independence from vendor control over their infrastuctures. That is my recommendation. That said, I believe that vendors are entitled to pursue whatever business model they want. If they want set up standards and encumber them in some way, more power to them. What I object to is when , in the course of doing that, the terms "open" and "standard" get abused and the risks of using technologies that have those labels attached to them are not honestly communicated. I don't have to object to the business model. If everyone is honest about how open the so-called standards actually are, then market forces will take over from there. That's what I favor. Letting nature take its course. But in order for that to happen, the disclosure situation must improve significantly, and people must be better educated about the difference degrees of encumbrance so that they can recognize when something isn't as open as they may have originally hoped (based on presentation or perception). Just OASIS' URL -- www.oasis-open.org -- is a bit misleading and disingenuous to me. And this is what I mean about being more honest, more transparent, and straight up. Then, market forces are free to work as they should.
          dberlind
        • Your point does not follow...

          "If following out your recommendation would do damage, then you must object to the situation that you want to damage."

          You're falling victim to a logical fallacy here. Causation does not imply intent. One can, for example, build a sewage treatment plant because one want to clean up a harbour. The fact that this will hurt the property values of people near the site of the plant is a result of this action, but it doesn't imply that the intent of the builder of the plant is to reduce property values near it.
          Resuna
      • Business or collaborative effort?

        This is a good description of a complex dispute, even within a single organization.

        Still, I think that your premise should be examined directly.

        Me, I'd say software is a business. The proof is that it's one of the larger industries in the US, doing a lot for the balance of trade, and the employer of many. It also produces profits so huge that one individual can accumulate $10's of billions.

        That makes standards not just a convenience, but one of the keys to advantage in the various competitive markets.

        Words on paper which can be decisive with $ billions at stake...

        Standards are business decisions which have to be approved by competitors because customers require some consistency among the competing products.

        Cooperation is competition by other means.


        When you observe...

        So, by abiding by the "so-called" rules, you just so happen to reserve the right to charge royalties later, if you so decide. There's really no reason other than their desire to preserve their rights, that vendors can't go beyond an IP regime's minimal disclosure requirements and say "here's exactly what we intend to do with our patent rights."

        ... that phrase "really no reason other than their desire to preserve their rights" appears to minimize the impact of standards.

        Think of the standards battle as like that between VCR and betamax or the current DVD competition. Or Microsoft in media.

        How much more importance can be added to preserving their rights to influence the future of a standard?


        If companies made clear their position on payment of royalties, and that by itself appears reasonable, what's the next required disclosure?

        The companies are trying to preserve flexibility. Commit to the minimum possible, and retain as much control as possible.

        The stockholders demand no less.

        Admittedly, if a standard were just an agreement among collaborators with different specialties, commitments could be made lightly. But that's not the situation here.
        Anton Philidor
  • Call to Action !

    David, Well done! This subject needed a 'drains-up' analysis, and you have done a thorough job of documenting all the major attempts by Big Software to control the rest of the ICT community.

    By the way, the fact that there are benign reasons far wanting to control standards, or re-write licenses in order to maintain control over brands and future development, as Anton has posted, is all the more reason to look very closely at all of the consequences of such actions. Having done so on numerous occasions, Anton, I have concluded that it is these usually unspoken consequences that are the real target. In short, the reasons you cite are a great smokescreen.

    Also, as someone who has previously been involved in standards development I can tell you that speed of development (and release), while desirable, are not a driver of an open standard forum.

    I too have been saying for a long time that OASIS WS standards, and variations on the GPL such as CPL, are rapidly developing into anti-innovation, Big-Software-planted, bombs - but there are solutions. Most importantly, a few of their biggest and dirtiest cannot be primed without software patents.

    There are four things we need to do urgently:

    - Build on the recent democratic debate at the European Parliament, which led them to overwhelmingly reject software patents despite millions of dollars spent by Big Software on lobbying.

    It is important to remember that software patents in the US only came into being through the courts - so there is plenty of room for a full US political debate, and legislation, to counter this problem. More US citizens need to sign-up to the FFII [ www.ffii.org ] and the EFF - and volunteer time to make this happen. A grass roots effort worked before, it can again.

    - Educate friends in the industry on the subtleties of licenses. Pointing them to this column would be a great start.

    - Those of us involved in specifying systems need to be more active. Currently we are in the front line - our purchasing power (and our customers' purchasing power) is greater than the politicians' power - and we need to be specifying what WE WANT from standards and licenses. Is there room for a customer forum that might press for a move of OASIS standards to a more customer-friendly home?

    - We need to think about the rights of our industry colleagues. This debate about licenses and patents will not go away until we are clear about what our industry needs. Personally, I think that even current copyright law limits innovation and raises industry costs far more than is necessary to ensure a fair return for software authors. But I'm ready to join a debate.

    If we do not do this last one, I fear for our industry. It is too easy to play the blame game. If I worked for Big Software I too would be tempted to build a regulatory regime that favored big returns for shareholders.
    Stephen Wheeler
    • Smokescreens and sincerity

      Ascribing motives to a corporation should not be easy. You can suspect that the real reason for an action is hidden, but you need proof before convicting the accused.

      When you wrote:

      By the way, the fact that there are benign reasons far wanting to control standards, or re-write licenses in order to maintain control over brands and future development, as Anton has posted, is all the more reason to look very closely at all of the consequences of such actions. Having done so on numerous occasions, Anton, I have concluded that it is these usually unspoken consequences that are the real target. In short, the reasons you cite are a great smokescreen.

      Finding the "real target" is a problem.

      If you want an example of how carefully motives have to be proven, look at the Supreme Court decision in the Grokster case.

      The Court wanted to show that Grokster intended to make (advertising) money from copyright infringement. Many of us would say, Well, duhhh.

      Instead, the Court (or its clerks) sifted through all the documents for examples and found reason to believe there might well have been intent.

      Then they referred the case back to the trial court for a real determination.

      I have difficulty with some of the evidence they used. Ads which were prepared but not used can show no more than an overzealous employee, for example.

      But the point is that even in looking for a reason to have a trial on the question of intent, the Court had to find a huge amount of evidence.

      If your determination of the "real target" is based on less conclusive proof, then I'd say your conclusion cannot be the basis for significant action.

      Particularly when you consider the circumstances here.

      Competitors who want to put each other out of business are agreeing on the groundrules for their competiton.

      Inventors who want to see their products widely used are handing over control to others, except to the extent that the rules protect them.

      In either of those situations, I'd look at the specifics as carefully as I'd consider my will. Both a will and standards are very difficult for the author to change when put into effect.

      So suspicion is healthy, but mistrust in just about every case, as you imply, appears to me arid cynicism.
      Anton Philidor
      • Motives & Agenda

        Anton,

        First, thanks for your feedback.

        I will respond first on your charge that my proof of Big Software's intentions is slight.

        My determination of Big Software's targets is a personal opinion, based on numerous occasions when it has been necessary to advise clients on the potential future development of standards (mostly) and some commercial company strategies (to a lesser extent). In most cases the advice given was to assist strategic decision making, and purchasing decisions, on ICT infrastructure and change programmes.

        As far as proof goes, in such a situation, I have to concede that the supporting proof for my original post falls far short of the standard for a case such as those applied to Grokster. However, just as there are differing levels of proof required when trying a civil (as opposed to criminal) case - so it is with determining the commercial 'biosphere' within which a strategic direction has to be set (as opposed to taking someone to a court of law).

        By definition strategic commercial decisions - including the purchase of software upon which my firm may rely for decades - are not made in the full light of day. We cannot know what many ICT companies will do in the future, sometimes even tomorrow. In such a situation we rely on:

        - What those companies (that affect our strategy) are saying;

        - The level of commitment those companies are prepared to apply;
        - - Written into all supply contracts;
        - - Written into public statements of record (e.g. Stock Exchange filings);
        - - Other Public Statements (e.g. press);
        - - Private Statements;
        - - and so on...

        - The track record of those companies;
        - - What do they promise;
        - - How detailed are their promises;
        - - How good are they at keeping their promises;

        - What is their record for probity and integrity;

        - What are other customers saying about those suppliers;

        - What their partners, and suppliers are saying;

        - What standards groups are saying;

        - Do we believe their strategy;
        - - Will their strategy help them make money (i.e. making it more believable);
        - - What are their competitors saying (a nice grey area!);
        - - What are they prepared to give up in order to make their strategy happen;
        - - and so on...

        - What the independent press are saying (much caution required here);

        - and so on...

        But always remembering: ACTIONS SPEAK LOUDER THAN WORDS. Big Software's major, multi-million-dollar, lobbying effort in Europe on software patents finally persuaded me to write to three of my customers - to whom I had previously given contrary advice - to say that they must begin considering the longer term implications of OASIS' stance on IP.

        Also, by and large, strategic decisions are as often made on what people do not say, as on what they do. If Big Software have another agenda they would be saying so. If they want us to believe in their 'other agenda' (whatever that may be) then why are they not selling us that agenda? True some have made token efforts by giving up a few US software patents in order to generate PR - saying that they support the OS community. The OS community is not impressed, but that doesn't surprise me - they are not the real target. The real target was Washington policy makers who, sad to say, do not read OS community blogs or boards.

        Considering the peculiar circumstances that you asked we look at:

        "Competitors who want to put each other out of business are agreeing on the ground rules for their competiton."
        - Yes, to the exclusion of new competition - particularly new innovative competition.

        "Inventors who want to see their products widely used are handing over control to others, except to the extent that the rules protect them."
        - This is only a good thing if we had agreed that standards are better owned by small clubs of IP owners - thus handicapping standards development, or that IP ownership is a good thing, or that IP requires protection (e.g. If we could see a reason for investment in IP, or that major investment is required to create ICT solutions), or if we agreed that there is a lot of invention in new ICT standards, or that we agreed that those providing ideas to standards groups, or writing new software programs, were giving up something of very great value. In every case the answer, of course, is that such protection is not needed because all of these premises are false.

        "In either of those situations, I'd look at the specifics as carefully as I'd consider my will. Both a will and standards are very difficult for the author to change when put into effect."
        - This is demonstrably not true. Standards are frequently changed by their authors (what version are you running, of anything?) even when there is a populous user-base. Indeed, in my direct experience it is often the users of versions 1 &2 of a standard who are the driving force behind subsequent standards development!

        "So suspicion is healthy, but mistrust in just about every case, as you imply, appears to me arid cynicism."
        - People often misuse cynicism, because they don't understand it. Remember, to be a cynic I have to be principled, decry those who simply take their ease rather than tackle the difficult, and I must doubt other's' sincerity. If you describe me thus - I am proud to be a cynic

        It is the doubting that I cannot harmonise with what I see in the actions of Big Software.
        Stephen Wheeler
        • Pride and Prejudice

          To me, software is a major industry that employs many and provides opportunities that would otherwise not have been available. It also often pays higher salaries than provided in other fields requiring comparable training and expertise.

          These to me are good things.

          One of the branches of the software industry is packages software, defined as that in wide use. The value of the software is unique functionality. The more providers of the functionality, the lower the price and therefore the less revenue.
          One way to restrict competition, particularly the parasitical or imitative variety, is through the use of IP.

          My assumption is that much invention occurs and many are employed because IP protections limit competition. Moneys received for past inventions can fund the development of future inventions.

          This system is far from unique to software; it's the underlying principle behind the existence of IP in all fields.

          So I believe that IP is beneficial because of the obvious gains it has produced for those who receive the income generated.

          That's the pride.



          In response to my comment:

          Inventors who want to see their products widely used are handing over control to others, except to the extent that the rules protect them.

          You observed:

          - This is only a good thing if we had agreed that

          standards are better owned by small clubs of IP owners - thus handicapping standards development,

          or that IP ownership is a good thing,

          or that IP requires protection (e.g. If we could see a reason for investment in IP, or that major investment is required to create ICT solutions),

          or if we agreed that there is a lot of invention in new ICT standards,

          or that we agreed that those providing ideas to standards groups, or writing new software programs, were giving up something of very great value.

          In every case the answer, of course, is that such protection is not needed because all of these premises are false.


          That, I have to say, is the prejudice.


          Standards should be developed by those most affected monetarily, in cooperation because competing standards aggrieve users, but standards are the essential ground rules for competition.

          IP ownership supports the employment of thousands if not millions of people. It would be very difficult for you to persuade me that's not a good thing.

          Assuring revenues for inventors or at least implementations is what keeps the system going.
          Otherwise, anyone who wanted to do so could steal an idea, making all the good work of the originator without value.

          Standards do not have concern intrinsically valuable expressions of ideas. They're ground rules that allow customers to have more effective use of products.
          A standard is not the same as IP, though it may represent the choice of one piece of protected IP over another.

          There's one connection between writing software and writing fiction: they're both not worth a lot monetarily unless some one buys them. And they both have to be protected to assure someone has to buy them.
          The ideas, the programs "given up" to a standards group can be the loss of the amount that would have been paid for them.

          Of course companies can give up some revenue in return for providing the standard. Because they expect the standard to be the basis for substantial revenues in the future. That's a business decision, though it often looks more like a bet.

          When we start from different premises we end in different places. But comparing the two competing premises in this discussion, which to you looks like a boon to real lives and which an abstract concept that's potentially damaging in human terms?
          (And yes, that's an extremely loaded way of asking the question.)
          Anton Philidor
          • Master and Slave.

            [note, my reply pertains to many parts of your post even though I don't always quote it further.]


            "When we start from different premises we end in different places."


            You are right. And neither of us is providing very hard numbers. I've tossed "millions" "thousands" and even "billions" around in other posts (recently and at other times). You have tossed at least the former two just in this post. In each case we basically made a number of assumptions.

            I can say this. I believe there are a lot more people employed by companies in violation of patents then are employed by patent holders.

            Secondly, it doesn't surprise me that people that support patents tend to talk as if the patent is a proof of invention. It isn't. It is a particular form of documentation of invention. What is more. Even if a patent were sound, it is likely that the current system does more to hamper innovation than to help it.

            If the field of software were expensive and short on inventors then you would need incentives to get investments to allow "inventors" the ability to focus on inventing, something that would presumably be expensive and in dire need. Presumably these incentives would restrict others to some extent, but society would be willing to sacrifice one good for a better one. But this is not the case in the software field: there are plenty of inventors and plenty of implementors.

            Your earlier point that we need patents (though you used the word IP, and you are probably aware many strong supporters of disallowing software patents, completely agree with trademark and copyright protections) to force people to pay for books and software is nonsense as many consumers currently pay companies for software and services that are not protected by patents, and I am not very familiar with cases where people only bought books because of patents on the material contained inside (even books about patents don't generally have patent protection on any of the books' contents, I don't think).

            You would like patents to slow down progress not increase it (so you could keep up with it and find a way to tax it), that is what I think.


            "The value of the software is unique functionality."

            I thought the creation of cheap automation was the major benefit of software.



            "One way to restrict competition, particularly the parasitical or imitative variety, is through the use of IP."

            Well, you meant "IP, including patents" instead of "IP," I think. In any case, you are assuming that people in different places at similar or even different times aren't basically able to come up with similar ideas unless one is copying the other. You assume there is a unique originator, one to which we can uniquely attribute the creation/invention. You implicitly assume that originator is the one that gets the patent. You further assume that that idea is patentable just because someone was able to get a patent (in a basic sense then yes it was patentable but...) You even assume (implicitly) that that patented idea deserves protection that is on the span of 2 decades.

            And why were we restricting competition again? Oh, I remember:

            "My assumption is that much invention occurs and many are employed because IP protections limit competition."

            I actually agree with Bill Gates "youthfully naive" comment on this years back which says to the effect that if patents were actually being enforced, the industry would have been unable to move forward so quickly. I think data bears this out because there are very few violations that have ever been enforced perhaps because everyone is in violation and the uproar of trying to enforce would be intolerable and more damaging than helpful. [I see this as impractical as Prohibition, but worse in that there is a clear loss and little gain to the majority (I think Prohibition had the potential for a big gain, at an obviously, big loss)]



            "So I believe that IP is beneficial because of the obvious gains it has produced for those who receive the income generated."

            Well, I agree, if you were to adjust it to say:
            >> So I believe that IP (specifically including software patents) is beneficial to the IP owner/ patent holder, at the detriment to the majority, because ....



            "To me, software is a major industry that employs many and provides opportunities that would otherwise not have been available. It also often pays higher salaries than provided in other fields requiring comparable training and expertise."

            If this is true, I don't see the patents connection. I see for example the fact that there are so many ways to improve productivity with every day that goes by and every line of code that gets written. I see that open source is a more efficient method of increasing this production. But what I don't see is the patents connection.


            Patents (software patents in particular) are one of the few ways that the nongovernment entity is allowed (ie, backed by government force) to extract lottery-windfall-sized taxes from the rest of us. Like lotteries, they are not very productive and involve large transfers of wealth from many to a few. Unlike lotteries, they actually damage existing businesses. Unlike lotteries, they are forced and provide entertainment for a very few, hardship for a very lot.


            If you look around, maybe you will see the great amount of valueable research that takes place daily (and has for many years) without the patent motivation.

            Patents are presumably an added incentive needed to turn this research into useful but expensive industrial processes. This is not the environment under which software patents are coming about. Instead of leading to more for the end user, they are poised to significantly restrict the end user from being able to enjoy the fruits of the scientific communities. And they are capable of putting a lot more people out of work (or reduce their salaries) than to do the opposite.


            Pride and Prejudice [the fictional piece]:
            Inventors with patents are a higher form of life. The lowly forms of life are envious.

            Master -- Slave [application to reality]:
            Inventors with patents are masters; the rest of the world, including other inventors, are slaves.
            netnerdo@...
          • Sorry

            Dear Anton,

            You will probably never read this, as I have returned to this blog talkback rather a long time later.

            Nevertheless, here is my answer.

            Your point that software is a major industry seems to me to be off-subject. It is a true statement - but does not provide me with any data that seems relevant to the arguement (?).

            Software might be usefully described as:
            A series of instructions for a device.

            The instructions may be self-referencing, and/or self-adjusting. The instruction set may also be adjusted according to inputs requested or received (as part of that instruction set) from other devices or from human operators or data entry clerks.

            The device may, or may not, perform a useful function as a consequence of following the software instructions.

            Software instructions may be stored in the device to be instructed, or may be introduced into the device (transmitted into the device by means of a network or other data-carrying media such as a disc, or fed in by a device user) at an appropriate time for the device to complete the desired function.

            From this description, I can see no value in software functions per se.

            The value of software is in the completion of useful tasks by the devices that software drives.

            You assert that; "The more providers of the functionality, the lower the price and therefore the less revenue." By which I assume you mean less revenue per supplier? This does not, necessarily, mean less revenue overall - though that would be normal for a free market. Given that the economic input of software is to make devices do useful things, why would we care if normal supply-and-demand economics (Adam's "invisible hand") works as it should - determining the best price for the economic good supplied? Do lower prices benefit more people than high prices? The classic, well supported, answer is yes. For software there is a special reason: lower costs mean far more implementations = a lot more 'useful' value in society at large.

            You go on to equate the use of IPR with a restriction of competition, for which I thank you. This is, of course, the problem. IPR is (supposedly) a trade-off. IPRs exist to create incentives that (according to IPR advocates) would otherwise not exist. Poppycock. This argument only holds true if we believe that people are only motivated by money, and that the costs of reproduction and distribution of a work require a bridge between creators and investors. This is simply not true for software, as software companies have often admitted. The argument for IPR is further developed by the assumption that the only socio-economic model for distribution of inventions is a warehouse-centered distribution network for discrete copies of controlled-content packages which must be exchanged on a purely commercial basis. That description, in itself, is a clue - it's way too restrictive!

            It is particularly maddening, for those of us who work in the area between the creaters of ICT infrastructure and the buyers and users of ICT infrastructure, to hear the argument that a restraint of trade is a good thing - it is a very bad thing.

            You describe some competition as; "parasitical or imitative".

            This is, of course, the oldest argument in the book against competition - trotted out by every monopolist and self-interested swindler for time immemorial.

            Imitation is the most sincere form of flatery, but I do appreciate that imitation doesn't pay any bills for the imitated.

            Parasitical is a nasty charge to lay at anyone's door. My only refutation, and I freely admit that it is not as strong as I would like, is that I have seen the useful job done by so-called 'major' software packages re-created from scratch, by unconnected programmers, writing new programs, in just a few days (a couple of weeks, if you add in user-friendly interfaces and good documentation).

            My argument here, I guess, is that true innovation should be recognized - but that true innovation is not being captured by our current IPR regime. What our IPR regime currently recognizes as innovation is, very often, nothing more than the obvious use of tools and techniques that are widely known.

            You went on, Anton, to share one of your concious assumptions; " ...that much invention occurs and many are employed because IP protections limit competition". Again, thanks for that, and, again, I'm going to burst your bubble.

            I know of no study that equates IPR with increased innovation. I have heard of several that have found the opposite (sorry, but as you are unlikely to read this I didn't put the effort into finding links - but they do exist). Not, of course, that this should be a surprise to anyone. Governments have been complaining that restrictions on trade limit innovation for at least 500 years!

            You also share your assumption that: "Moneys received for past inventions can fund the development of future inventions." On the face of it, that's true. However, just because someone invents something doesn't mean that it will find its way to market. This is an attribute that IPR shares with standards. As David Berlind noted in his blog: Just because a standard is labelled "open" doesn't mean that it is open to change. On the contrary, a 'standard' that has IPR foundations may be a very useful way to control market entrants - ensuring that a better, innovative, competitor doesn't get off the ground.

            Part of the problem with IPR is that software is different. But this is not recognized widely enough and Old World assumptions about innovation are applied to software in ways that limit the real usefulness of software. That can only be a bad thing for all of us.

            Your use of the word prejudice to describe my position is disingenuous if you mean to imply that my view is bigotted. That would imply that I hold views without due consideration for the possible value of IPR. Nothing could be further from the truth. Having studied this subject recently I believe that there is some social and economic value to be ad from IPR. On the other hand, I also believe that vested interests have inflated IPRs to a point, today, where any good they might provide has been lost and that, actually, if the vast majority of IPRs were to be struck down tomorrow, the World would instantly become a far better place. Yes, I said instantly and I meant instantly.

            Your comment that; " ...Standards do not ... concern intrinsically valuable expressions of ideas. They're ground rules that allow customers to have more effective use of products." appears to ignore the original story content and in any case is illogical. If standards are not intrinsically valuable ideas then why the hell do people sit down and write them?!

            Also, as someone who sat on a standards board, I can tell you that if standards were only useful for using products then governments and major companies would not spend so much time, resources, and energy creating and supporting so many standards organizations.

            Standards have a number of different functions, but their primary goals are economic. Standards lower the prices of devices and implementations, ensure cheap interoperability of devices and organisations, simplify (and therefore lower the cost of) quality and safety checks (and other forms of inspection. They also provide a measure of replaceability (lowering the costs of device, process, regulatory, and supplier substitution), and provide a bridge between current implementations and future implementations of replacement devices, procedures, and so on...

            Your additional comment that "A standard is not the same as IP, though it may represent the choice of one piece of protected IP over another." is prejuduced though, to be fair, perhaps not intentionally (?).

            Standards can, and do, exist with or without ideas that have IPRs attached, so it is simply nonsense to charaterize a choice between standards as a choice between IPRs.

            You are plain wrong Anton, the connection between writing software and writing fiction is not that they are both intrinsically worthless - and that some investor must buy into them in order to create value from them.

            Software and other forms of writing share:
            - Creativitity in creation;
            - They are bit-bound;
            - They are not atom-bound;
            - They both have intrinsic value as human communications;
            - They can both involve a mix of creativity, instruction, and factual data;
            - They both have social implications and impact beyond mere consumption;
            - Both require interpretation;
            - Neither requires any form of intellectual property right or any other form of monopoly to succeed in the marketplace;
            - Both can make money with limited investment;
            - Neither requires the services of a publisher;
            - Both suffer from limited availability due to the marketing power of existing publishers; and
            - Both flourish best in an open market for ideas.

            When ideas are voluntarily handed over to ensure that standards are better than they might otherwise be, it is an egalitrian act of charity no matter what other motivations may exist. I am shocked that you have such little regard for your fellow human beings.

            As far as your final question goes, I am not in the least impressed with your arguments for IPRs. IPRs are extremely costly for everyone (as is the very nature of monopolies). That includes software writers. Software writers do not make a lot of money, as you have suggested.

            Sure, there are big software companies making lots of money. But what about the people who work for those companies - the ones who are actually responsible for the cool ideas? As we saw during Microsoft's trials, many of these people are contractors with no stock options, and no continuity of employment. The reasons these companies make money is because they are publishers, not creative authors. That benefits a tiny minority of people, even including those who's retirement investment fund has stock in big software.

            A real boon to life, and one that can be realized right now - benefiting every human being on the planet, would be a root-and-branch review and re-write of IPRs.
            Stephen Wheeler
  • Ideology, not discrimination

    It seems to me that the dispute between Open Source and RAND terms (particularly Microsoft's) is related to the difference between non-discrimination and affirmative action. Non-discrimination means treating everyone equally; affirmative action means treating different groups differently. The reason for the different treatment may be, as in the case of racial discrimination, an attempt to make up for past discrimination. That's a laudable goal, even if it's success is open for debate.

    But the dispute between "free software" (FS) and RAND terms is not based on past discrimination. Rather, it is resistance based on ideology. FS is insisting that licensing occur on ITS terms, rather than on the IP holder's terms. FS considers anything other than its own terms to be discriminatory. Witness the complaints by the FSF to the EC concerning Microsoft's RAND terms (that otherwise comply with the EC's directives).

    I'm hesitant to grant full weight to such complaints. If Microsoft can show that it is indeed providing its IP on RAND terms, then that should be sufficient. Anything else is an attempt to "nationalize" IP.

    If FS isn't happy with such terms, it should avoid IP covered by such terms. It may in some cases be difficult, but if the ideology is so important, shouldn't it be followed?

    Carl Rapson
    rapson
    • Good post Carl.

      Good points all around.
      No_Ax_to_Grind
  • legal quagmire

    I have to wonder about the fate of innovation in programming over the next 50 years. It seems more like a legal exercise than a matter of algorithm and organization. I have no legal training, but as a product designer, innovator, or even casual programmer I can see legal boundaries to my creativity on every side, usually ending with paying microsoft or some other corporation for patents or rights to intellectual property that I can arrive at independently from them, but since "they were there first" have their hands out for payment, which is unspecified and unregulated. The greatest downside that I can see over the whole issue is the payment aspect, that is if I develop a product that is sucessful, the technology that I liscense becomes worth more, so then my payment goes up because of MY success. IP without implementation is nearly worthless. A good parallel would be if I bought a tractor and the payments went up on years I had a good crop, tilled more land, or improved my crop yeild and then stayed that high for the life of the loan. The better I did the more detrimental the payment overall.
    It seems the only way to develop is to understand all the liscensing issues involved, and to negotiate a deal prior to releasing the product, when the technology is at its lowest worth. Unfortunately finding out who owns what technology, and "renting" it is difficult, and I would think there could be a whole new legal profession as well as a commodities market based on IP, so that negotiation could take place at market value rather than involving corporate politics. We must find a way to secure payment for innovation without attaching it to ultimate control of the marketplace.
    pesky_z
    • Welcome to the business world.

      Look, I do understand what you are saying, but the truth is this is nothing uncommon in business. People seem to have this idea that somehow if it's software it isn't subject to all the "problems" of all other industries. As you are seeing, that may have been true 20 years ago but is certainly isn't true today. The software industry is growing up.

      A great example if I may. I have a friend that is outstanding at working with composites (fiberglasss) and repairs exotic cars. He wanted to go out "on his own" and start doing work for his own business. Being under capitalized he wanted to simply work out of his home garage.

      Within a week neighbors complained, he was told his home garage was not zoned for business and he couldn't continue. He shopped around for a small garage that was zoned properly but then found he would need to invest $20k to $25k in a booth, air cleaners, water scrubbers, safety equipment, etc..

      In taking to me he complained that "I have all this skill but because I can't afford to meet the requirements I can't open my own shop, it isn't fair". My reply to him? Welcome to the big leagues...
      No_Ax_to_Grind
      • Interesting..

        I have a friend that rebuilds corvettes and he works out of his garage. Houses don't need to be "zoned for business" unless you are using them as a "store." There are many people here in Georgia that have their business in their homes, including doing car maintenance and rebuilding. Heck, probably half my subdivision runs their business out of their home. Maybe it was just the fibreglass that got him in trouble. But then, what are they going to do if he tells them it is his "hobby" :)
        Patrick Jones
        • Maybe in rural Geogia.

          Or maybe your city doesn't have or enforce zoning laws. But I assure you most cities and states do.
          No_Ax_to_Grind
          • If you consider metro atlanta rural..

            then maybe you are correct. Then again, maybe we aren't as snooty as your friend's area :) Heck, I would not want to be the one that has to tell a southerner he can't do his car repair business out of his home. I will say that if you didn't know it, you would never be able to tell that my firend runs a corvette shop out of his home.

            Did you friend try to get a zoning variance? I am curious as to what part of his business wasn't allowed. Since he has a house, he could have tried to get a small business loan with that as collateral. Or maybe his friend that has 3 businesses and a few patents could be his venture capitalist ;)
            Patrick Jones
      • Something is definitely wrong

        "Look, I do understand what you are saying, but the truth is this is nothing uncommon in business. People seem to have this idea that somehow if it's software it isn't subject to all the "problems" of all other industries. As you are seeing, that may have been true 20 years ago but is certainly isn't true today. The software industry is growing up."


        What has to grow up is the perversion that has become the patent system. Way off in effect of its intentions, at least in the context of software engineering, where every other engineer, every other hour, must be some sort of Einstein to be able to infringe on so many patents.


        When patents were awarded for generally expensive undertakings (costly laboratory work) or the occasional accidental development in someone's kitchen (yeah, how often was that), or more importantly, for processes that were costly to implement, hardly anyone was really affected (the disgruntled inventor here or businessman there).

        But in the past few decades things have been patented that would have been inconceivable at any time in the previous centuries (things that would be considered academic work, perhaps worthy of publish in a journal not in a patent office). A few violated these unwritten rules, but there was little if any uproar, so long as the numbers were small and probably for something really out of the ordinary.

        Nowadays, every programmer is essentially in violation (or likely to be) all the time, and by extension their employers which are many, varied, and frequently users themselves. People that would not consider themselves inventors or even competitors, and definitely not Einsteins or Edisons.

        Ask yourself what are patents anyway. They are a curtailment of what one would expect is a god-given natural right: to be able to think, come up with a solution that is otherwise legal and beneficial, and attempt to use it to help oneself make a living.

        Maybe in a world where few had education or the only way to realize use of most patents involved large capital investments, such was tolerable (many that got patents or created them worked for someone else and few were likely to even be in the same planet to be able to violate the patent except few other well vested entities). Perhaps then, there was a much larger risk that a thief would be running with your investment than someone else accidently reinventing what perhaps wasn't that spectacularly innovative to begin with. Today, the patents being given have the potential to bring innovation and advancements to a standstill, there methods and descriptions are that pervasive in the industry (and without patent lookups).

        It should be clear what is in fact out of date and out of whack.


        [If someone knows better about the history of patents and litigation, or about the current status, being contrary to the above, your views (with references hopefully) would be appreciated.]



        "In taking to me he complained that "I have all this skill but because I can't afford to meet the requirements I can't open my own shop, it isn't fair". My reply to him? Welcome to the big leagues..."


        His complaint about him not having enought money would be akin to others complaining they don't have enought noodles to "innovate" or enough cash/know-how to obtain patents. His issues have nothing to do with patents. I am not saying you couldn't come up with a better analogy or hypothetical conversation that would be closer; for example, you could have said that he did have the startup cash and the means to compete, but patents were keeping him from working his setup (patented business and marketing methods (perhaps the use of a home and certain tools and using the web or word of mouth to get clients) or patents on techniques that he would almost surely violate just by firing up his blowtorch or banging his mallet to achieve certain effects, techniques that would be almost without substitution unless he were phenominally creative).

        If such had been the nature of the conversation and you had not taken sympathy, then maybe you would have a leg to stand on (even if you would be ridiculous and in fact standing on only one leg).
        netnerdo@...