Open Source Trade Associations Lack Sanctions

A controversy developed last week when the author of an article concerning the Java lawsuit quoted what I said on Twitter in 140 tongue-in-cheek characters:"The ORCL-GOOG case makes OIN and the Linux Foundation look like the League of Nations at...

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A controversy developed last week when the author of an article concerning the Java lawsuit quoted what I said on Twitter in 140 tongue-in-cheek characters:

"The ORCL-GOOG case makes OIN and the Linux Foundation look like the League of Nations at the start of WW2."

Of course my comment is hyperbolic and can be contested on all sorts of grounds - it was on Twitter, for goodness sake, it's not a position paper! Tweets lack nuance, usually lack context and rarely form a good basis for journalism (or indeed spin-doctoring) without additional discussion in person.

The point of this comment was not to dismiss the Linux Foundation or the OIN. I am clearly a supporter of OIN, as I enrolled ForgeRock as a licensee just two weeks ago. Both trade associations play various useful roles for businesses working with open source software. The point was rather to observe that for whatever reason, to the average meta-community member they would both have been expected to try to keep the peace among their members and prevent conflict - especially using software patents - from breaking out.

Clearly that didn't happen here. Neither has commented so far, perhaps because they are genuinely engaging in diplomacy (my sources suggest this). All the same, they don't appear to have sanctions available to use against their errant members, nor do they and their direct supporters even believe there is any duty for them to do so. I have now heard from a number of commentators annoyed I should even suggest there is something abnormal going on here.

Software patents are broken and the only possible justification for having them is self-defence (which is itself a risky accumulation of armaments that could fall into hostile hands in the future). It seems plenty of important members of both the Linux Foundation and the Open Invention Network make public assertions claiming they believe that assertion, so there should surely be no objection to equipping both of these trade associations with firm, meaningful sanctions.

The question is, what form should those sanctions take? It's very hard for a trade association to take a position in cases like the Oracle-Google lawsuit. But both organisations have membership rules, and membership in both is a valuable asset. Perhaps OIN and the Linux Foundation need to make membership conditional on members taking no first action against each other with software patents?

Membership would be automatically suspended for the litigant on first notice and in every case, so that there was no need to take a subjective position. It would only be reinstated if it could be shown the litigation was actually a good-faith defence to some activity elsewhere. That way there would at least be consequences of aggression, rather than just a foot-shuffling silence and potshots at people like me for "not understanding".

The article's author says:

"Phipps, I believe, is not arguing against the OIN and the LF so much as arguing for something else: an additional solution/entity that could put the kibosh on lawsuits like these."
Exactly.

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