Once More unto the Breach

Microsoft and Xen and Patent Leadership

Sam Ramji gave an excellent short talk at OSCON 2007 on Linux and Windows Interoperability: On the Metal and on the Wire.  Sam described the collaborative work being done inside the Microsoft open source labs to better enable virtualization with the Xen world. 

Indeed, Xen comes from a GPL licensed project where Microsoft was a sponsor of the original University of Cambridge work.  HP and Intel are still sponsors.  (Of course you need to use the Wayback machine to begin to see hints of this.)  This is all good.  But I couldn't help but wonder at two questions during Sam's presentation:

• What is the patent landscape around virtualization?
• What is Microsoft's position with respect to Xen and Xensource if someone were to attempt a patent run against the project?

A quick check of the USPTO patent database can give us a initial inexact feel for the space:

• Patents with VMWare as the assignee (22)
• Patents with Microsoft as the assignee (7117)
• Patents with Microsoft as the assignee and containing "virtualization" (20)
• Patents with Advanced Micro Devices and containing "virtualization" (4)
• Patents with International Business Machines and containing "virtualization" (130) !!!
• Patents with SWSoft as assignee and containing "virtualization" (2)
• Patents with SWSoft as assignee [SWSoft makes Parallels] (6)
• Patents with Intel as assignee and containing "virtualization" (100)
• You get the idea ...

It's a potentially messy space.  As virtualization lives so firmly on the hardware/firmware/software boundary, we don't even need to have the debate over the relevance and merits (or lack thereof) of software patents.  Somewhere in that collection of patents there are likely to be hardware patents, or firmware patents indistinguishable from hardware, and they may read on the Xen space.   

Are we afraid yet?  I'm rattling the sword very very loudly.  Worried at all?  Even an eensy-weensy bit?  Hopefully NOT.  VMware, Microsoft, Apple and SWsoft at a glance have been shipping products for some time.  Intel, AMD, and IBM have been building hardware to be virtualized for some time.  And Xen has existed for some number of years squarely in this space, and academia is not naive when it comes to patent filings.  As a company, Xensource has been basing its race for the gold ring on the Xen project.  Xensource may even be an easy first target to pursue for a patent troll on the way to bigger and better shakedowns (although I certainly wouldn't bet against Intel, HP, VMware, Microsoft, etc. getting involved early.)   

Which brings us to the second question. 

Here is a perfect (and safe) opportunity for Microsoft to get out ahead of the curve, and demonstrate that they can learn and that they do "get it" and indeed that they can lead with respect to the licensing debate.  They can make the patent grant, here and now, to the Xen project.  As an intellectually interesting challenge for their legal team, they would be creating a deliberate license directly related to a project licensed under the GPL and stating (within their control) how their patent license does apply downstream, so as to not interfere with their assertion of patent rights in other areas.   The point would be to see how promiscuous they could be with their patent rights in a well defined way.  Sort of an interesting idea.  Indeed, it becomes a historical and game changing idea with respect to their competitors.   

To date their competitors keep rolling positional hand grenades out into the field and the Microsoft legal team feels obliged to leap on every one of them.  Mention the GPL and the Microsoft legal team runs screaming with their hair ON FIRE (to borrow a phrase from Eben Moglen's great Ubuntu Live keynote.)  Develop an enabling and protective patent license around Xen, and they begin to provide a basis for future interesting debate. [Some of the lawyers may even get to make a name for themselves publishing the brief!]   

Of course hell could freeze over too.  But it's great to dream.

Tim O'Reilly, Eben Moglen, and Jane Jacobs

[Updated 5-Sep-2007, 11:38:  Tim has posted his comments and the definitive video.  You be the judge.]

[Updated 1-Aug-2007, 09:28:  Matt Asay was unfortunately out of the room, but has blogged his take on Eben's concerns.  He thinks this post is "hooey".  I've responded in his comments.  All good fun.]

Tim O'Reilly tried interviewing Eben Moglen on licensing in the "Web 2.0" era as one of the sessions at the O'Reilly Radar Executive Briefing.   I believe his intent was to expand the discussion he began a year ago when he suggested "open source licenses are obsolete."

Unfortunately, Eben went on the attack.  Indeed, he made it personal.  And it was in poor enough taste that many of the excellent ideas he delivered on the need for a second order debate and tools to deal with conflicts in rights were lost.  (News and blog links are below.)

I haven't seen Tim on stage before with someone directly involved in the freedom  discussion to the level of Eben.  It perfectly cast the debate into positions that I believe are by definition incompatible and incongruous. 

Jane Jacobs (originally famous for "The Death and Life of Great American Cities") wrote a small Socratic dialog called "Systems of Survival".  The characters debate that there are exactly two value systems in existence.  One leads to politics (protecting) and the other to commerce (trading).  These value systems are not opposite ends of a spectrum, but rather different and incompatible.  For each value in one syndrome there is no equal and opposite value in the other. 

I've long maintained in my free and open source software talks that we have understood communities since "you had a campfire and I wanted to sit beside it."  That metaphorical campfire perfectly frames the value systems debate as well.  Am I allowed to sit beside the fire because you're acting as protector?  (And when will you begin to tax me firewood?)  Or did I trade to sit beside the campfire. 

Neither value system is inherently "better" than the other, indeed they each serve their adherents and proponents well (which was Jacobs's point).  But neither can they be mixed together.  (They are not along a continuum.)  One sees this every day.  Businesses and governments have an uneasy alliance in policy, regulation and legislation.  But while trading is as old as communities, the growth of the economy over the past ~200 years owes much to government legislation enabling limited liability, joint ownership companies and the shared risk investment in capital that was thus enabled.

Tim is the embodiment of the trading value system.  Indeed, I would suggest that not only  was the attack on stage unwarranted, but that the Free Software movement has been able to deliver its important message to a broader audience faster because of the stage Tim built with O'Reilly Media.   

Likewise Eben is a veritable intellectual and rhetorical lion for our political value system around software freedom.  Eben may be the perfect person to engage in the necessary debate going forward around conflicts of rights that I believe are invariably created by friction between the two value systems.

Hopefully the debate is not lost in the unfortunate heat and noise arising last week on stage.

Pax.

News and blog links:

• Eben Moglen challenges Tim O'Reilly to "join the conversation" by Joe 'Zonker' Brockmeier (Linux.com)
• Eben Moglen Berates Open Source by Robert Kaye on the OSCON Conference News site
• Eben Moglen Whacks Tim O'Reilly on the Snaplogic blog
• GPL Whiz Moglen nails  Web 2.0 O'Reilly on "frivolous" charges by Ashlee Vance of the Register.   
  

Ubuntu Live! (Day One)

It's 9 AM on SUNDAY morning and at this unconscionable hour I was sitting in a room with 200 people for Mark Shuttleworth's opening keynote at Ubuntu Live.  This three day event runs Sunday 22 July through Tuesday 24 July, and has been organized by Canonical and O'Reilly Media. 

Mark gave an excellent keynote (as he is prone to do), talking about the rise of Ubuntu over the past three years, and looking forward to the evolution of quality, engagements, and commerce over the next three years.  He acknowledged his partners at Dell, Sun, Intel and Open Moko, building on the themes that the time is now to demonstrate that open source has arrived beyond the data centre, and it's time to take Linux to a much broader audience. In doing so, however, he was NOT looking at Ubuntu as simply a better desktop, but rather enabling people beyond the desktop. 

As he pointed out with the Playstation 3, the future of computing does not necessarily look like a desktop and there are many interesting places where people "do computing".  There is no reason why a full platform couldn't be delivered on the PS3.  (I remember having this debate over the XBox inside Microsoft almost five years ago -- pointing out that they all ready had a Windows machine in the living room, it just needed a bigger disk and a wireless loop.) 

Stephen O'Grady (Redmonk) was the next keynote.  He built on the morning's keynote theme of collaboration, pointing out that apt-get is sufficient magic (per Clarke's Third Law on Predictions), and going on to explore the idea of distributed support.  Essentially connecting the community and the software would be like app-get for people (support) and not just software. 

Jeff Waugh provided the last keynote of the morning.  In his inimitable style, he gave a presentation on "Fierce Freedom" and "Fierce Commerce".  Jeff walked people through some of the learnings of the Ubuntu community that came from the Python, Gnome, and Debian community experiences. 

He then provided a historical perspective on technology and commercial innovations enabling social change, walking us through Gutenburg's innovations around movable type, the use of paper, and the development of the printing press, on through Luther's social changes, and onto the Tyndale translation of the Bible.  (There was a wonderful shot on Stephen O'Grady's behalf, suggesting Gentoo was the do-it-yourself Bible in the Linux world.) 

In the end he pointed out that software freedom is not just for geeks, and that we are the next translators.  ("Be the signal!")

The afternoon keynote's were kicked off with a great presentation by Eben Moglen.  He discussed his satisfaction and pride in the community in the development of the GPLv3, not because it's a better license, but in the demonstration of collaborative community development in an open and democratic process that transcended the entire free software community (corporate, academic, legal, and development). 

Mitch Kapor was next up.  He talked about his own evolution from proprietary developer in the mid-eighties to his belief in free and open source software development.  He then made a number of interesting observations about the social implications of open source.  Early developers at this point (early as in high school aged people) are living in open source worlds -- it is quite possible that the socialization of open sourcce will mean the next generation of developers will believe that this is the way it's always been.

Mitch pointed out that open source software has moved from margin to mainstream in a single human generation (~20 years).  Open source software is enormously empowering, especially to those in marginalized situations, and he built on the theme that it is also an amazing model for getting things done in a transparent and collaborative way.  Indeed, it is a form of democratic renewal that is so badly needed socially. 

Jim Zemlin (Linux Foundation) finished the afternoon's keynotes, outlining the mandate of the Linux Foundation and their commitment to helping the community. 

Optaros Open Source Directory Relaunched Online

Optaros has relaunched its Executive Open Source Directory as an online resource.  Originally launched in January 2007 as a PDF document on their white papers site, the directory covered approximately 260 free and open source software projects.  The valuations were based on hands-on experience from the Optaros developers and consultants and rated the projects from the perspective of functionality, maturity, community activity, and overall from an enterprise readiness point of view based. 

Optaros is now relaunching the directory as an online interactive resource.  They hope it will be more consistently up-to-date, and they're enabling external ratings, and case studies to be uploaded so customers and communities can directly participate.  Optaros will maintain ultimate editorial control to ensure quality.  RSS feeds are enabled to allow people to track projects or the directory at large. 

I took the opportunity to interview Bruno von Rotz, VP Strategy & Research and country manager in Switzerland, about the development of the directory and have presented it as a podcast.  I also interviewed Daniel Chalef, CEO at Knowledge Tree, an open source document management system company with a project in the directory since the original directory was created.  I finish up the podcast with Redmonk analyst Stephen O'Grady on his views on the directory's evolution.  The podcast is posted at LibSyn and available via the iTunes directory as well.  (Comments and suggestions for future podcasts are welcome.)

Disclaimer: I was employed at Optaros as part of the management team from February 2005 until September 2006.

Wired Publishes Assignment Zero Interviews

If you visit Wired.com today you will see the Assignment Zero work as the banner story.  Wired published the first three features and one of the Q and A's.  They will continue to publish our collective/collected work throughout the week, rolling two or three stories out each day. 

I participated in the Assignment Zero pro-am crowd-sourcing journalism experiment, interviewing Beth Noveck on the Peer to Patent project.  The collection of interviews is incredible, however, including interviews with the likes of Lawrence Lessig, James Surowiecki, Clay Shirky, and Chris Messina.  (There were 80+ interviews in all.)

It's a fascinating experiment.  I'm still asking myself "why participate" (aside from seeing your work referred to by Wired.com).  It certainly forced me to research and consider how to interview someone to [hopefully] get them to tell their story.  As I start to resurrect the podcast again, the experience proved invaluable. 

In the mean time, enjoy the interviews!