Why Time is Patently on Open Source's Side

So far, I've held off from writing about the proposed sale of 882 Novell patents to a consortium “organised by Microsoft”, since there have been so many twists and turns - first it was on, then off - that making sensible statements...

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So far, I've held off from writing about the proposed sale of 882 Novell patents to a consortium "organised by Microsoft", since there have been so many twists and turns – first it was on, then off – that making sensible statements about the likely impact on free software was well-nigh impossible. As is so often the case, the devil would clearly be in the details.

Now, it seems, we have (more of) those details:

The Department of Justice announced today that in order to proceed with the first phase of their acquisition of certain patents and patent applications from Novell Inc., CPTN Holdings LLC and its owners have altered their original agreements to address the department's antitrust concerns. The department said that, as originally proposed, the deal would jeopardize the ability of open source software, such as Linux, to continue to innovate and compete in the development and distribution of server, desktop, and mobile operating systems, middleware, and virtualization products. Although the department will allow the transaction to proceed, it will continue investigating the distribution of the Novell patents to the CPTN owners.

Specifically:

Microsoft will sell back to Attachmate all of the Novell patents that Microsoft would have otherwise acquired, but will continue to receive a license for the use of those patents, the patents acquired by the other three participants and any patents retained by Novell;

All of the Novell patents will be acquired subject to the GNU General Public License, Version 2, a widely adopted open-source license, and the Open Invention Network (OIN) License, a significant license for the Linux System;

CPTN does not have the right to limit which of the patents, if any, are available under the OIN license; and

Neither CPTN nor its owners will make any statement or take any action with the purpose of influencing or encouraging either Novell or Attachmate to modify which of the patents are available under the OIN license.

The OIN licence is involved because Novell was one of the earliest backers of the Open Invention Network, whose approach is that:

Patents owned by Open Invention Network are available royalty-free to any company, institution or individual that agrees not to assert its patents against the Linux System.

But CPTN must go further, licensing the Novell patents under the GNU GPL v2. It's not clear how that will work in practice: after all, per user fees are simply not possible with software licensed under the GNU GPL. Perhaps the idea is that a lump sum will be paid as a one-off licensing fee for all open source projects – although that presupposes that there is someone willing and able to cough up.

Despite this remaining uncertainty, this agreement is an extraordinary testament to progress of open source in government circles. The level of understanding is clear not only from the US Department of Justice's statement above, but also from that of the German Bundeskartellamt (via Google Translate):

The concerns were mainly on the markets for operating systems and virtualization software, where Microsoft and EMC / VMware, at least the market strong. In these markets there is basically over smaller competitors, the possibility of so-called FUD strategies ("Fear, Uncertainty, Doubt"), operated by means of patent lawsuits. Then also had numerous complaints made in particular from the open source community.

Again, it is pretty amazing to read in an official press release from the terribly serious German Cartel Office concerns about the use of patents to spread FUD, specifically against open source. This argues a widespread appreciation of the way in which broken patent laws have allowed what was designed to be a spur to innovation to become a weapon for hobbling competitors – not just directly through the courts, but as a vague but real threat to hold over them.

The fact that the US Justice Department clearly shares that view – and "will continue investigating the distribution of the Novell patents to the CPTN owners" - is significant; it means that all of those involved in the CPTN consortium will remain under scrutiny to guard against any future abuse of the patents involved, or FUD based on them.

There is another important aspect to this agreement, made clear in the following section of the Department of Justice press release:

In light of the department's competition concerns, CPTN and its owners made revisions to their formation agreements to acquire approximately 882 patents and patent applications from Novell. The department said that these changes were necessary to protect competition and innovation in the open source software community.

The opening paragraph was exclusively about allowing open source to continue to "innovate and compete"; the section quoted above reiterates this explanation, emphasising again that "these changes were necessary to protect competition and innovation in the open source software community." It indicates that the Department of Justice (and presumably the Bundeskartellamt) see open source projects as worth protecting not least because they foster competition. That is, their role in helping to keep proprietary companies efficient and honest is now recognised by the relevant authorities.

That has enormous knock-on consequences, notably in the field of open standards. Once governments accept that open source plays a vital role in the larger computing ecosystem, they must then take steps to ensure that it can play that role fully. This means, for example, that open standards need to be on a restriction-free (RF) basis, not simply RAND (reasonable a non-discriminatory.)

As I've written at great length, the European Commission failed miserably in this regard when it unfortunately buckled under pressure from lobbyists in drawing up the retrograde European Interoperability Framework 2.0. But the announcements from the US and Germany show that was a throwback to the past. Judging by the statements around the CPTN announcement, government agencies in the future will be more aware of the need to specify open standards that are RF not RAND so as to allow open source to "protect competition and innovation". It should just be a question of time before we see the results of this new realisation.

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