Friday Jan 29, 2010

☞ Why H.264 Must Be Avoided

Friday Jun 05, 2009

OASIS Protects Open Source Developers From Software Patents

Crane Block

Some of you may remember a fuss that was made a few years ago by some open source people over the copyright and patent policy used by OASIS, the computer protocols standards body1. OASIS seems to have taken it to heart, because it has today announced what looks to me like the perfect basis for technology standards in an open source world.

Their new rules2 include a new "mode" which standards projects can opt into using. In this new mode, all contributors promise that they will not assert any patents they may own related to the standard the project is defining. Contributors make this covenant:

Each Obligated Party in a Non-Assertion Mode TC irrevocably covenants that, subject to Section 10.3.2 and Section 11 of the OASIS IPR Policy, it will not assert any of its Essential Claims covered by its Contribution Obligations or Participation Obligations against any OASIS Party or third party for making, having made, using, marketing, importing, offering to sell, selling, and otherwise distributing Covered Products that implement an OASIS Final Deliverable developed by that TC.

That's deliciously simple, and implements close to what I have previously recommended as the basis for handling patents in open source projects. I've written before how patent non-assert covenants are low cost for the patent holder and low risk for the developer. There is of course a "patent peace" associated with it:

The covenant described in Section 10.3.1 may be suspended or revoked by the Obligated Party with respect to any OASIS Party or third party if that OASIS Party or third party asserts an Essential Claim in a suit first brought against, or attempts in writing to assert an Essential Claim against, a Beneficiary with respect to a Covered Product that implements the same OASIS Final Deliverable.

I think this is a wonderful development for protecting open source developers from patents, and I would like to see it replicated in all standards bodies. The only issue will be whether OASIS TCs choose to adopt this mode; we need to demand it and boycott the TCs that don't.


  1. I thought the fuss made was pretty unfair at the time, since it complained about legacy OASIS approaches to patent licensing just at the time when OASIS had fixed them - the essence of the complaint was that OASIS hadn't just blown away the old approach but had left it there so that older projects weren't harmed.
  2. There's a redline PDF document showing the changes - the new stuff is mainly in section 10, although other areas had to be changed to match as well, I gather.

Friday May 01, 2009

☞ ODF, Patents and Copyright in NZ & SF

Monday Jan 26, 2009

Intellectual Privilege

Hobart at Sunrise

Speaking at conferences like linux.conf.au (where I delivered a keynote last Friday) and OSCON is great fun. It's challenging to speak to an audience that's so diverse that it includes both the creator of the Linux kernel and students who just discovered it exists. It's humbling to know that the intelligence and achievement in the audience dwarfs anything I've ever done. And I admit that sometimes it's frustrating that there's a requirement for political correctness!

There are political correctness landmines littering this domain. For example, using the terms "open source" and "free software" is often taken as an indication of either one's cluefulness or of one's affiliation to a particular world-view. Personally, I consider the two expressions complementary - open source communities collaborate on a free software commons - but there's rarely a chance to explain that before I speak.

An especially frustrating one is the expression "intellectual property". The term is used widely in the business and legal communities, and it becomes second nature to speak of patents, copyright, trademarks and trade secrets collectively in this way. The problem with doing so is that the expression is factually wrong, and a legion of open source developers (you know, the ones working on free software) take the use of the phrase "intellectual property" as a genetic marker for "clueless PHB-type" at best and "evil oppressor of geeks" at worst.

Why is it wrong? Well, none of those things is really "property". In particular, copyright and patents are temporary privileges granted to creative people to encourage them to make their work openly available to society. The "social contract" behind them is "we'll grant you a temporary monopoly on your work so you can profit from it; in return you'll turn it over to the commons at the end of a reasonable period so our know-how and culture can grow."

Using the term "intellectual property" is definitely a problem. It encourages a mindset that treats these temporary privileges as an absolute right. This leads to two harmful behaviours:

  • First, people get addicted to them as "property". They build business models that forget the privilege is temporary. They then press for longer and longer terms for the privilege without agreeing in return to any benefit for the commons and society.
  • Second, they forget that one day they'll need to turn the material over to the commons. Software patents in particular contain little, if anything, that will be of value to the commons - no code, no algorithms, really just a list of ways to detect infringement.

Working on the legacy of this sociopathy is the subject for another time, but I believe we need to change the way we talk about the subject. Both Lakoff and Lewis agree; the words we use to describe things change the way we perceive them. The term we use probably needs to allow us to speak casually of "IP", so that we don't find every conversation to be a minefield of political correctness. Various suggestions have been made, but each of them seems to me to be so slanted to the opposite agenda that there's little chance of practitioners using them.

However, the term "intellectual privilege" seems to work. It's got the right initial letters, which is a huge win! But it also correctly describes the actual nature of the temporary rights we're considering. After having written most of this, I then searched to see if anyone else thought the same and found that someone is actually working on a book, endorsed by Lawrence Lessig, that has that as the title!

I doubt I will get the chance to explain all this before my next conference keynote. So if I don't, accept my apologies. When I said "IP" just now, I meant "intellectual privilege", and I think it's the right phrase for the job.

Sunday Mar 16, 2008

Software Freedom: More Than Copyright

New Forest Reflection

I was surprised last week to see a posting from Michael Tiemann, the President of the Open Source Initiative and a VP at Red Hat. Any posting with a subject of line of "Simon Phipps Was Right" is bound to catch my eye, but this one was especially unexpected because in the original discussion I had thought that Michael was largely right! Michael's posting graciously said:

Simon, I'm beginning to think that you were right and I was wrong. You said a standard's process is a crucial aspect of the standard's product, and a process that is not open cannot be trusted to produce a product that can be considered open. I maintained that I had seen and used many wonderful standards that took absolutely zero input from me, and therefore I didn't see my participation as a necessary prerequisite for assuring quality in the future. I believed that no matter what the process, a standard should be judged by the product. Watching the fallout settle from the [ISO ballot resolution meeting] in Geneva, I'm beginning to think that you were right and I was wrong.

I've been thinking about the posting for a week or so now and I've tried to respond thoughtfully. Here is the response I sent to Michael (still awaiting moderation):

Thank-you, Michael - it's not often I see a posting like this. Actually, when we spoke about this at OSCON I found I agreed with many of your arguments, even if that doesn't show in the on-list discussion. The problem is that standards are orthogonal to open source, and attempting to define them in a way that promotes and protects software freedom may be impossible. It's been said that when we create any system we create the game that plays it. The standards system is fully mature and as such is fully gamed, as the DIS29500 debacle you reference is proving.

Maybe a more productive approach going forward is to try to do for the other kinds of so-called intellectual property what the Open Source Definition (OSD) currently does for copyright licensing. Perhaps we need to rename OSD to "Open Source Copyright Definition" and then work on an "Open Source Patent Definition", so that we can avoid the kind of entrapment that software patents can threaten? And as you know I am convinced we need an "Open Source Trademark Definition" to help us as a community of communities to avoid the IceWeasel problem.

If these are interesting, I'd be pleased to spend time exploring them together. Let me know.

New Definitions

The current Open Source Definition doesn't actually define Open Source - rather, it defines a subset of the requirements that protect software freedom, in this case the copyright license. I actually think renaming it ("Open Source Copyright Definition"?) would be good since there's more to Open Source than just the copyright license. I then suggest we explore creating an "Open Source Patent Definition" and an "Open Source Trademark Definition".

What would be in these two new definitions? Both would need to define what promotes software freedom and how it can be protected. Both would need to be pragmatically principled.

  • An Open Source Patent Definition would do for patents what the OS(C)D does for copyrights. I've posted a lot on this subject before, notably in Protecting Developers from Patents and Ten Reasons The World Needs Patent Covenants, so I'd go mining there for my contributions to the discussion. But it may also be that in addition there needs to be a call for patent law reform, maybe as I outlined in Seven Patent Reforms While We Wait For Nirvana.
  • When it comes to an Open Source Trademark Definition, we would need to similarly define the signs that a developer or user needs to know whether software freedom is being promoted in a trademark policy. I've not written about this yet, but I do believe we need to collectively understand the bounds trademark law places on people who have responsibility for trademarks (read: all developers and open source communities as well as all vendors). We then need to construct a path that promotes software freedom without placing impossible demands on trademark owners to behave in ways that are contrary to their responsibilities.

This is not easy stuff. But I do believe that certain recent events between the open and proprietary software worlds mean that it's time for software freedom fighters to get together and work on these things. I'm ready to work on it. What do you say, Michael?

Friday Mar 07, 2008

Responding to the EU on DRM

CDG T2F

In response to a request from the European Union concerning DRM and interoperability, Sun has submitted a lengthy written response. Preparing for and reviewing the response with colleagues took me back to my earlier article, DRM and the Death of a Culture. My tendency is always to look for a guiding principle rather than to seek a set of rules, and in this case it's about quantization of discretion. Here's what I wrote:

People talk of "fair use" but what they actually mean is that we all depend on the exercise of judgment in every decision. Near the "bulls-eye" of copyright we're all clear what is what, but as Lessig eloquently explains in Free Culture, in the outer circles we have to make case-by-case judgments about what usage is fair and what usage is abuse. When a technologist embodies their or their employer's view of what's fair into a technology-enforced restriction, any potential for the exercise of discretion is turned from a scale to a step and freedom is quantized.

It strikes me that the inherent quantization of rights is what makes DRM at best undesirable and at worst a guarantee of cultural Alzheimer's. I was thus delighted when a very senior Sun executive insisted that the position paper include the following paragraph:

Before we discuss interoperability in detail, we would like to emphasize this last point. Sun believes that DRM should be a solution only when necessary. DRM should never restrict the user's ability to utilize the content in legally-permissible ways. With this in mind, any DRM system must be open, fully interoperable, and free from hidden IP licensing burdens that effectively re-close the system economically. Indeed, in the spirit of the company that supports OpenOffice.org, Sun believes that the Commission's stance should enable it to be possible to create a free version of any DRM system used in the EU!

Of course, I am personally among those who believe it is never necessary to apply Digital Restrictions to content, but I'm very pleased that Sun is taking a position that DRM should not be assumed to be automatically a part of the entertainment business.

Tuesday Jan 30, 2007

Adobe Adds Non-Assert

I just got home from a great day at JFokus in Sweden, so this is my first chance to pass longer comment on Adobe's excellent move to turn PDF into a ratified international standard like ODF. I first saw the news in Duane's blog and saw from there that they are sensibly using AIIM as the steward. This approach - waiting for the spec to stabilise before standardisation - is exactly the right thing to do and I understand the balance one needs to make between concern for the existing user base and desire to formalise the established standard. Stephen has one his Q & As on the news which is worth reading, especially for the implication of importance to the ongoing tussle between Microsoft and the rest of humanity over document formats.

When I saw the news, the first thing I went looking for was the details of how Adobe will handle all the patents associated with PDF, since it undoubtedly has a substantial portfolio. On Monday there was nothing at all about that in the announcement or the FAQ, so I asked on Duane's blog. Interestingly Stephen doesn't cover this important topic.

I just got a note from Duane with the very welcome news that Adobe has in fact decided to issue a Covenant not to sue surrounding its patent portfolio for PDF. They've added this fact to the end of the FAQ.This is excellent news since it frees the forthcoming ISO standard for implementation by Free and open source communities. Kudos to Adobe for taking this increasingly normal step with their standard, and to Duane for acting so fast to get it sorted.

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Thoughts and pointers on digital freedoms and technology markets. With a few photos too.

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