Once More unto the Breach

Corwin's Razor and the OASIS IPR Policy

In the heyday of POSIX in the very early 1990s, two ugly burdens were bogging down the people in the working groups that were actually present to do the technical specification work.  One such requirement was placed on the IEEE work from outside.  ISO had a say in how it would approve the IEEE standards for ISO standardization and placed considerable additional work on the IEEE groups.  The relevant ISO working group wasn't going to help with all the additional work requirements.  The Chair of the IEEE Real-time working group observed, "If they're not willing to put their money where their mouth is, they're not a customer."   We grabbed it and Corwin's Razor was born. 

Let me be clear on a few things before I go further:

• I don't believe software patents are particularly useful.  The ability to create in software is easy, as well as the ability to move from idea to prototype to production.  It is much easier than delivering pharmaceuticals through the system with long production and testing requirements, or going from drafting table to widget from an assembly line, or a chemical process from lab prototype to scaled manufacturing.  A patent's protection is likely less relevant in a world that changes faster for the most part than the length of time it takes a patent application to crawl through the system. 
• I believe the USPTO is going to hit a wall in the not too distant future.  The lag time in the process (18 to 24 months) means you can do all the right things with respect to patent analysis (and even filing for your own) and ship a product blindly not knowing whether or not you're infringing another person's work.  Throwing the burden of proof onto the U.S. federal court system after the fact only exacerbates the legal and economic problems.
• I believe the economics of the situation states standards exist to encourage multiple implementations, while patents exist to protect a single implementation, so by definition these two things serve different diametrically opposed parts of the economics spectrum.  (Yes, I'm beginning to sound like a broken record on this point.)
• I believe standards organizations themselves have historically avoided patents as best possible.  That doesn't mean that they can avoid patents.  Non-participants can show up at any time with patent claims and hamstring a working group's efforts or worse yet the ratified standard.  Or collections of vendors might develop patent pools of patents that indirectly relate to a technology space, while they collectively develop a standard directly relating to the space in a standards organization.  (I'm thinking VCR machine patents versus tape format specifications.  And yes, I choose the example deliberately. It didn't go through a standards org, and I owned a Betamax machine.)  It may mean there are interesting business negotiations and barriers to entry outside of the standards organization, but the standards organization is basically unable to be involved in the external activities of its members.  Nor should it be involved in such external activities.

So I read the new OASIS IPR policy, the transition policy, and the FAQ.  And the old IPR policy as well to appreciate the difficult work that was done.  And I read the protest letter signed by many people that are spokespeople within the OSS community-at-large, many of whom I deeply respect.  I googled around re-reading several articles (InternetNews, ZDNet) and blogs on the subject (and found a great standards blog to explore). 

First, looking at the new OASIS IPR Policy: it's pretty good.  It demonstrates a remarkable grasp of the ugly patent situation in which standards organizations are finding themselves with respect to the work of their membership.  It demonstrates a clear evolution of thought, and bears witness to the fact they have looked at their previous policy and the situations other standards organizations have faced and they have cleanly documented a policy, giving the broadest possibility for discussion.

Standards are about technology diplomacy.  The goal of individual participating members is to expand their area of economic influence, while defending sovereign territory, and the balance point between those two positions is always difficult.  The result is a specification document, but the process is a discussion and a negotiation each and every time at every level.  The new OASIS IPR policy provides that space for discussion. 

The new policy is very clever however in how it approaches the problem of dealing with patents.  It forces the individual technical committee to have the discussion about patents before they do work, and thereby obligates them to the course chosen by all. 
It protects participants from scope creep that might expose other patents, so those participants should be more willing to have the royalty free discussion up front knowing they aren't writing blank checks on their patent investments.  It obligates members to declare patent applications as well as awarded patents, so the group can see things coming.  It obligates a member that withdraws to continue with their licensing requirements preventing patent abuse (from the occasional pathological people that would join a group to see where it's going, disengage, and attempt to patent ahead) and members from "changing their mind" and trying to disengage.   If the group chooses to opt for RAND-only licensing, this tells the outside world of non-members something about this standard. 

One blogger raised the idea of a default to royalty-free with the tech committee having the RAND discussion after the fact if it becomes necessary.  If the default was royalty free, none of the members with the ability to make the greatest R&D investment would participate because they would be asked to write blank checks against their intellectual property strategy.  The membership of OASIS would move on.  Likewise, if a group can change from a royalty free option to a royalty bearing RAND option after the fact, then there is more risk of "large corporate  interests" manipulating the system to advantage after the work begins on the standard. 

Now for the protest letter.  Sorry, my friends, but it is just wrong.  The customer of a standards organization is its members. The standards organization is a market oriented discussion forum where like-minded expert and experienced participants come together to agree on a specification that will enable multiple implementations of something.  In a perfect world it expands the overall market for a technology by creating a commodity of one component of that technology market.  This is why there are so many different standards organizations spanning the multifaceted marketplace.  If you're a member of OASIS, then join the discussion, debate the question, and vote.  If you're not a member, you aren't a customer, and you don't actually have a say.  That is the way standards works. 

The interesting thing is that standards are a conversation.  There is a debate.  And in the end it is a vote the decides the consensus process in a standards group.  A measure of the consensus process, however, is the ability to compromise. The heavy-handed demands of the protest letter fly in the face of the discussion and the debate and an ability to compromise.  For those of you who signed the letter that may have visited committee meetings to demand your position, you may have noticed the room dynamic was inhospitable.  That's because you were demanding.  You appear unwilling to debate and more importantly, unwilling to compromise.  That too is the way standards works. 

Because standards and patents don't mix well economically, most successful standards, and by successful I mean broadly adopted and implemented, were based on well understood existing practise and experience and don't contain patents.  Those standards that do end up encumbered get worked around with competing unencumbered designs and implementations (gzip, Ogg), replaced overtime with unencumbered standards, or ignored.  This posting is read by you because of the foundation of standards from the IETF and W3C that allowed the Internet and the WWW to thrive and grow. 
 

Another great quote from that period of POSIX standardization was delivered by Roger Martin (then of NIST, now Director of Standards at AOL) when he said, "Standards committees that choose to make themselves irrelevant get what they deserve."

Hopefully this blows over and OASIS can get on with the business of developing standards, most of which won't be royalty encumbered (so will become more broadly adopted), but some of which might be encumbered and less successful, because that's the consensus of the people doing the work. 

 

News feed from ConsortumInfo.org

I'm trying the live feed for standards-related news from consortiuminfo.org.  Comments and feedback are obviously welcome. 

OSDL Summit: Presentations are published

The OSDL has published most presentation slides from the Enterprise Linux Summit.  You will find them backing the titles of the talks.   

A patent is merely the ticket to the license negotiation

Thanks to the Consortium.org news feed for pointing to an eWeek article on the BSA concerned over the EU mandate around open standards.  It comes down to the following quote in the article:

The BSA's main objection to the EIF is that it requires a standard to be "irrevocably available on a royalty-free basis" and impose no constraints on "re-use." Such restrictions don't allow standards that, for example, rely on patents for which a royalty may be charged, according to Müller. Most standards organizations, including the Institute of Electrical and Electronics Engineers, the International Organization for Standardization, the Internet Engineering Task Force and the International Telecommunication Union, allow standards to include patented technology as long as the patent owner licenses the patent claims on reasonable and nondiscriminatory terms, he said.

The problem here is that two special interest groups are clashing over the wrong thing. 

• There are people that believe standards must not contain patents that aren't royalty free and available to all, or they can't be considered an "open" standard.  The lobbying effort is driven by open source software advocates concerned there may be standards they want to implement in the future encumbered by patents whose licensing terms are incompatible with some of the licensing terms they would choose in their open source software license. 
• The BSA is concerned their member's use of software patents to protect their products will be restricted if the policy passes requiring the definition of standard to mandate royalty free patents.

The term "open standard" has historical significance much older than the recent patent debate, and the term "open" typically meant open participation by all interested parties.  The lobbiests for the new definition need to understand that their norm re-engineering attempts may not go over well with those of us involved in the standards industry long before the current open source versus patents situation arose, even with those of us that strongly support open source development and licensing.  Getting the EU to anchor the terminology in the policy merely gaurantees the debate and eventual moderation of language. 

As observed earlier, patents and standards serve different conflicting needs in the economic spectrum.   Yes, all real standards organizations have a patent policy, but that's because those organizations and their members need a way to deal with the situation of discovering a patent in the middle of a developing specification after it arises.  Every company that thinks they're going to "get rich" by ensuring their solution is the standard loses.  When they think by placing a patent in the middle of the specification they will have the toll booth on the bridge when the specification becomes the standard, they're naive.  Economics works.  The ecosystem looks after itself.  One of two things happens:

• The (now angry) developers of the standard go back to the drawing board and that standard with its patent toll exists for as short a period of time as possible, and may even wither immediately on the vine.  (While Microsoft actually went out of its way to try to do the right thing in the SenderID debate last Summer, the standards community's response was direct and undeniable when they even thought they were at risk.) 
  
• The patent holder gets mauled by the developers of the standard.  (There was a wonderful situation a few years ago where Northern Telecom attempted a strong arm tactic with patents against a particular VITA effort and the VITA members organized legally outside of the standards organization and won.) 

Yes, a patent used fairly is a wonderful thing, but it is merely a ticket to the negotiation for a license.  Think about what happens when someone gets greedy with a patent.  (The definition of greedy here means they don't license but end up in litigation.) They can lose the patent directly in the court proceedings when they sue, OR they can win the judgement and if the "price" is too high get mired in an appeals process where they are further at risk and deeper out of pocket.  Think Eolas.  Presumably at some time during the proceedings money was offered for an out of court settlement (and it would have anchored the patent for a while longer.)  Maybe the money offered was too low, or maybe Eolas got greedy.

A few years ago, someone claimed they had the fundamental patent on web service delivery.  All I could think of at the time is that I hoped they sold quickly and comfortably, because they would have immediately run into the legal beagles from Sun, Microsoft, and IBM.

The open source community should look to what was learned in the standards world.  While patents are potential problems, economics works.  Some are worried that patents are destroying the standards world.  That's sort of like worrying that open source is going to commoditize the value out of some finite stack of software. 

 

LinuxWorld: Fear & Loathing in Linux World: Commoditization, Commercialization and the Customer

I caught Mårten Mickos's keynote yesterday at LinuxWorld, before a last run through the trade show floor and out.  He's always a trend setter.  First, it wasn't a 45 minute infomercial for MySQL AB, but rather a talk about how to think about an open source based business.  Second, he said some brilliant things.  Here's a smattering:

The first community that arrives in an open source project are those that are willing to spend time to save money.  The second community are those that are willing to spend money to save time. 

He observed that the license is a balancing point between your community and customers.  It isn't just finding the compelling reason to buy something, but you have to ensure you don't create a compelling reason for the community to abandon the project.   

You can protect your open source business with:

• copyrights
• trademarks
• trade secret
• superior service
• product stewardship

While he didn't think there were trade secrets in MySQL (i.e. the code base), I would ask the lawyers amongst us to let us know if his customer list, and things the MySQL engineering team knows won't work (what they left out of the code) don't constitute things still protected as trade secrets.

He observed that the open source world is helping standardize licenses.  Approximately 70% of the 88,000 projects on SourceForge.net use the GPL.  If you had 88,000 proprietary products, you would likely have 88,000 different EULA. 

A vendor associated with an open source project provides stewardship, and a road map. 
He finished up on the forward looking note that he believes (as so many of us do) that open source is not eating it's way up the stack to commoditize all value out of software, but rather only a small fraction of the world's software needs have been met so far.  A wonderful keynote. 

 

LinuxWorld: HP and Odd Keynote Digressions on Patents

In an otherwise pro forma LinuxWorld keynote (well scripted standard messages: Linux started on the edge of the corporate network, Linux is now proving itself in more key areas, Linux is enterprise ready, these two customers have bet their businesses on Linux and are happy with the ROI, ROA, TCO), Martin Fink wandered off into an odd digression on software patents. 

I think we all agree with his statements.  We do live in a world where the USPTO exists, and software patents (regardless of one's opinions about their validity) are a reality, and everyone has the right to protect their inventions as they see fit.  So what?   In the open source world, developers have always supported the right of the developer to choose their license.  His statement that patents are the only way to protect one's inventions is a little narrow.  Patenting is one way.  So is publication, because you want to actually protect your business not simply the invention.  So instead of an odd digression, maybe he could have given the audience a real discussion on the HP intellectual property strategy.  Let us know how HP chooses to patent somethings and publish others.  Let us know the avenues for publication you use, or the costs involved.  Give us a real picture.   Of course as the #4 patent filer in this year's list, they might be one of those companies that simply patents everything.  (Using a ball park fee of $15,000/patent filing for the legal fees, they only spent US$26.6M last year.)

Mr. Fink also used the opportunity to announce their release of code under the GPL for their part of the virtualization software in the Xen project.  Bonus points to the reader for reading all the way to the end of the Xen page to read the credits: "Work on Xen has been supported by UK EPSRC grant GR/S01894, Intel Research, HP Labs and ..."

O'Reilly's Make is finally here

Off topic: I bought the first issue of O'Reilly's Make on the LinuxWorld show floor.  I haven't had much time with it, but I think I might try building a gauss rifle this weekend.  And of course what more needs to be said about yak shaving. 

It's Official: I've Joined Optaros

I left Microsoft after five years in early December.  I became a consultant (again) which is a fine moniker that can hide many things.  But as was pointed out today, you really carry the title of ex-FormerEmployer until such time as you join a new endeavour.  Today, it's official.  I am Chief Open Source Officer at Optaros, Inc.  Think of it as a community focused Chief Technology Officer. 

I'll be interested to see what happens to my writing voice on the blog.  I've noticed over history that the most original voice I've used came at times when I was unempl^H^H^H^H^H^H working as a consultant.  (This should not be confused with the strength of the writing skill.  I have become a better writer over the years.  Really)  But markets are conversations, and one of the reasons I came to Optaros was to have the conversation.  Time will tell. 

• Optaros, Inc.
• Markets are conversations.

Patents versus Standards

From consortium.org, Oasis (the Organization for the Advancement of Structured Information Standards) is modifying it's patent policy in good and interesting ways.  It continues to be a interesting discussion.  Formal standards exist to promote multiple implementations (as opposed to a proprietary specification that exists to encourage the use of a single implementation.)  Patents as opposed to standards exist to protect a single implementation.  These two bodies of policy/law serve different parts of the economic spectrum. 

The Consortium.org news feed is an excellent news tracker for this space. 

• OASIS
• The ZDnet article on OASIS

LSB Redux

The was a great LSB article published a few days ago by ZDNet.  As well as covering the background really well, it presents the problem in a nutshell.  It's unclear if that was the intention.  Scarey quotes:

• "Pressure from enterprises could also be essential. Some large companies, such as Credit Suisse First Boston (CSFB), have already announced they will only deploy LSB-compliant software, and those kinds of announcements could be the spur that ISVs need."
• "There is lots of momentum around the LSB, with many key players in the industry supporting it, but still not enough active involvement from ISVs certifying their applications," says Dirk Hohndel, director of Linux and open source strategy at Intel, who is a member of the FSG's board of directors.   Partly, this is because ISVs have baseless fears about the cost and complexity around an LSB certification, Hohndel says. [Ed. — Not sure how baseless they are.]
• For application makers it comes down to a financial decision, according to Red Hat's [analyst relations manager Nick] Carr. "For many ISVs, the issue is of choosing a de facto standard versus a de jure standard. If the LSB is maturing from one release to the next, and Red Hat Enterprise Linux 3 is already established as a de facto standard, they might just choose to port their applications to something that is a known standard," he says.
• ISVs may be wary of fragmentation, but so far, LSB compliance hasn't come at the top of their list of priorities, says Carr. "They generally rank other issues, such as the development tool-chain, product support, features, and the overall ecosystem -- the presence of other ISVs and OEMs - first." This isn't as big a problem as it seems, he says, because Red Hat's close adherence to the specification guarantees a certain degree of LSB application support.

Red Hat certainly doesn't want to give up market share, so quickly positions themselves as the same only better.  Some might remember the incredible UNIX 95 branding program announcements a decade ago where the UNIX vendors of the day that first branded (IBM, and Sun certainly, maybe NCR?) all had marketing quotes in the primary OpenGroup press release on UNIX branding where they sang the praises of their AIX and Solaris brands without ever mentioning the "U" word they had just worked so hard to obtain.  Irony is a wonderful wonderful thing.

The ISVs can't be "forced" to warrant their applications.  I describe that problem last week, and in more detail relating to the UNIX app branding programs of yore in an old somewhat wordy ACM paper.  (My apologies if you read it.  To quote Voltaire, I didn't have time to write it shorter.)  If you crawl the FSG/Opengroup application certification policy, program, the Trade Mark License Agreement, etc. you won't find that forced insanity.  However, an application brand apparently warrants that you run on an LSB certified implementation of your choice, an LSB certified implementation of the certifying agency's choice, and the LSB sample implementation.  It's unclear to me what value this has to whom. 

Don't get me wrong.  The LSB and implementation certification is essential for expanding the deployment of Linux in the enterprise.  Everything Jim Zemlim says about standards and customer buying habits is true.  But forcing app branding is the wrong place to put pressure.  This is NOT the same situation as the Windows branding programs Microsoft put together.  That was a very different set of programs with a different set of goals under the control of a single vendor.  The economics of this situation is very different.  We do need to find a solution here.

Links:

• The LSB Branding site
• A Microsoft Branding program (for contrast)