Microsoft and Novell – Exacerbating an Ideological Divide?

Tim refers to the open source community as the “good guys.” Impliedly, then, proprietary software creators and distributors are the bad guys. This “us versus them” conflict is part of a larger societal trend du jour against corporations specifically and the concentration of private wealth generally. As communitarians, open source and GPL promoters are the beneficiaries of such a movement – and open source’s most prominent leader actively promotes such anti-capitalist ideology.

Yikes! This isn’t what I meant at all. The “bad guys” I had in mind wasn’t proprietary software vendors. I have no quarrel with companies who focus on developing and selling proprietary software. My beef is with companies that try to use the patent system to erect barriers to the creation and distribution of open source software.

To their credit, very few companies to date have done this. So far, that includes Microsoft. Please note that I did not say that “Microsoft is laying the groundwork for splitting the open source community in two.” What I said was that some people are afraid that this will happen, and then I gave some reasons to think that it might happen, as well as some reasons to think it won’t happen. My hope is that they won’t–but I think it’s at least possible that the Microsoft-Novell deal was a first step in that direction.

I don’t think I’ve ever “broadly promoted open source software development and distribution over its proprietary brethren.” What I’ve tried to do is to advocate a level playing field, so that proprietary and open source software can compete on the merits. I’ve argued that policies like software patents and the DMCA tilt the playing field against open source software by erecting unnecessary barriers to entry.

Tim refers to the open source community as the “good guys.” Impliedly, then, proprietary software creators and distributors are the bad guys. This “us versus them” conflict is part of a larger societal trend du jour against corporations specifically and the concentration of private wealth generally. As communitarians, open source and GPL promoters are the beneficiaries of such a movement – and open source’s most prominent leader actively promotes such anti-capitalist ideology.

Yikes! This isn’t what I meant at all. The “bad guys” I had in mind wasn’t proprietary software vendors. I have no quarrel with companies who focus on developing and selling proprietary software. My beef is with companies that try to use the patent system to erect barriers to the creation and distribution of open source software.

To their credit, very few companies to date have done this. So far, that includes Microsoft. Please note that I did not say that “Microsoft is laying the groundwork for splitting the open source community in two.” What I said was that some people are afraid that this will happen, and then I gave some reasons to think that it might happen, as well as some reasons to think it won’t happen. My hope is that they won’t–but I think it’s at least possible that the Microsoft-Novell deal was a first step in that direction.

I don’t think I’ve ever “broadly promoted open source software development and distribution over its proprietary brethren.” What I’ve tried to do is to advocate a level playing field, so that proprietary and open source software can compete on the merits. I’ve argued that policies like software patents and the DMCA tilt the playing field against open source software by erecting unnecessary barriers to entry.

You say it “is an example of market participants contracting around or within the patent and copyright legal system to reduce the transaction costs of negotiating, monitoring and enforcing licenses.“
However I don’t see how it reduces transaction costs at all.
I agree more with Bradley Kuhn “It’s worse than useless, as this empty promise can create a false sense of security. Don’t be confused by the illusion of a truce; developers are no safer from Microsoft patents now than they were before. Instead, Microsoft has used this patent pledge to indicate that, in their view, the only good Free Software developer is an isolated, uncompensated, unimportant Free Software developer.“

Groklaw — SFLC’s Bradley M. Kuhn’s Letter to the FOSS Development Community Regarding Microsoft’s Patent Promise

You say it “is an example of market participants contracting around or within the patent and copyright legal system to reduce the transaction costs of negotiating, monitoring and enforcing licenses.“

However I don’t see how it reduces transaction costs at all.

I agree more with Bradley Kuhn “It’s worse than useless, as this empty promise can create a false sense of security. Don’t be confused by the illusion of a truce; developers are no safer from Microsoft patents now than they were before. Instead, Microsoft has used this patent pledge to indicate that, in their view, the only good Free Software developer is an isolated, uncompensated, unimportant Free Software developer.“


Groklaw — SFLC’s Bradley M. Kuhn’s Letter to the FOSS Development Community Regarding Microsoft’s Patent Promise

If the deal stands, the terms under which the Samba authors thought they were releasing software are not the terms under which their work now stands.

There’s a specific piece of patent gamesmanship that the GPL is designed to deal with, that the Samba developers assumed they were protected from, and that this deal tries to get out of.

A writes some software, and B distributes the software to C. Then patent troll D sues C. C complains to B, and B negotiates a license to pay D for each copy of A’s software it distributes. D then drops the suit against C. B is still in business, C is happy, and D is getting paid. Everyone is happy except A, who can no longer distribute his or her own software without risking a lawsuit from D, who is, by the way, getting money from B to pay lawyers.

Under the GPL, this isn’t supposed to be able to happen — so GPL-using developers such as the Samba team don’t get locked out of using their own work by a deal between users.

Discussions at gnu.misc.discuss, the FSB mailing list, and many other venues have gone over, and over, and over the consequences of various possible copyright and patent moves for more than 10 years.

If you invest years of programming time and effort with the assumption that your code is licensed one way, and it turns out to be licensed another, that takes away an incentive to create software value.

If the deal stands, the terms under which the Samba authors thought they were releasing software are not the terms under which their work now stands.

There’s a specific piece of patent gamesmanship that the GPL is designed to deal with, that the Samba developers assumed they were protected from, and that this deal tries to get out of.

A writes some software, and B distributes the software to C. Then patent troll D sues C. C complains to B, and B negotiates a license to pay D for each copy of A’s software it distributes. D then drops the suit against C. B is still in business, C is happy, and D is getting paid. Everyone is happy except A, who can no longer distribute his or her own software without risking a lawsuit from D, who is, by the way, getting money from B to pay lawyers.

Under the GPL, this isn’t supposed to be able to happen — so GPL-using developers such as the Samba team don’t get locked out of using their own work by a deal between users.

Discussions at gnu.misc.discuss, the FSB mailing list, and many other venues have gone over, and over, and over the consequences of various possible copyright and patent moves for more than 10 years.

If you invest years of programming time and effort with the assumption that your code is licensed one way, and it turns out to be licensed another, that takes away an incentive to create software value.

Tim, you call all “IP firms” patent trolls, and regularly cite any instance of an firm leveraging or defending its IP as anticompetitive. You state very few companies have used their IP anticompetitively, but you want to repeal the DMCA and eliminate software patents based on the simple issue of non-clarity. Further, your statement here is consisent with Braden Cox’s claim that you oppose all proprietary firms.

My beef is with companies that try to use the patent system to erect barriers to the creation and distribution of open source software.

You should read some Lemley. Its good for the soul.

“IPRs merely prevent others from competing to sell copies of a particular product, not from selling different products that compete with the original.”

Evidently, you disagree with Lemley, because you see IP preventing others from distributing or selling copies of products as anticompetitive.

Your statement here is a bit funny.

I don’t think I’ve ever “broadly promoted open source software development and distribution over its proprietary brethren.” What I’ve tried to do is to advocate a level playing field

Tim, its not a level playing field to begin with. Do you know what. Its because proprietary companies are more successful. By level playing field, you mean that you want to level the playing field as if no innovation has occured with proprietary industry. By unncessary barriers you mean any barriers at all, as if FOSS should get a free ride into the markets. Also, how can you say you don’t broadly promote FOSS, as you call for the downfall of the “Hollywood studios,” predict that technological innovation will eventually become predominently peer-production based, and like James Gattuso pointed out you often provide value judgements to support your claims rather than looking at economic indicators that suggests your alternatives to IP based business models are not tenable.

Stephen, how does Kuhn’s argument refute Braden Cox’s claim about transaction costs.

Tim, you call all “IP firms” patent trolls, and regularly cite any instance of an firm leveraging or defending its IP as anticompetitive. You state very few companies have used their IP anticompetitively, but you want to repeal the DMCA and eliminate software patents based on the simple issue of non-clarity. Further, your statement here is consisent with Braden Cox’s claim that you oppose all proprietary firms.

My beef is with companies that try to use the patent system to erect barriers to the creation and distribution of open source software.

You should read some Lemley. Its good for the soul.

“IPRs merely prevent others from competing to sell copies of a particular product, not from selling different products that compete with the original.”

Evidently, you disagree with Lemley, because you see IP preventing others from distributing or selling copies of products as anticompetitive.

Your statement here is a bit funny.

I don’t think I’ve ever “broadly promoted open source software development and distribution over its proprietary brethren.” What I’ve tried to do is to advocate a level playing field

Tim, its not a level playing field to begin with. Do you know what. Its because proprietary companies are more successful. By level playing field, you mean that you want to level the playing field as if no innovation has occured with proprietary industry. By unncessary barriers you mean any barriers at all, as if FOSS should get a free ride into the markets. Also, how can you say you don’t broadly promote FOSS, as you call for the downfall of the “Hollywood studios,” predict that technological innovation will eventually become predominently peer-production based, and like James Gattuso pointed out you often provide value judgements to support your claims rather than looking at economic indicators that suggests your alternatives to IP based business models are not tenable.

Stephen, how does Kuhn’s argument refute Braden Cox’s claim about transaction costs.

Noel, either you’ve taken that Lemley quote out of context, or Lemley is insane. Patents quite obviously prevent competing products just to the extent that they’re broad enough to cover them; Tim and many others have demonstrated over and over and over again that this is almost always the case with software patents. Moreover, insofar as copyright includes a derivative works right, it, too, prevents competitors. Finally, the DMCA and similar forms of metastasized quasi-IPRs prevent competition through their effects on interoperability, as Tim in particular has shown.

Regarding transactions costs, sure, having a few huge incumbent firms makes such negotiation much easier–but that’s absolutely the wrong benchmark. The right benchmark is one in which there are no patent-related transactions costs, because we don’t have software patents.

Finally, the idea that Tim’s views are somehow infected by value judgments while those of IP-maximalists are not is just hilarious. Any discussion of how rights and liberties ought to be defined and enforced necessarily implicates value judgments. The use of wealth-maximization criteria of efficiency, to cite an obvious metric, has rather clear value judgments built-in, as does a focus on compensation and purchase rather than production and consumption.

Noel, either you’ve taken that Lemley quote out of context, or Lemley is insane. Patents quite obviously prevent competing products just to the extent that they’re broad enough to cover them; Tim and many others have demonstrated over and over and over again that this is almost always the case with software patents. Moreover, insofar as copyright includes a derivative works right, it, too, prevents competitors. Finally, the DMCA and similar forms of metastasized quasi-IPRs prevent competition through their effects on interoperability, as Tim in particular has shown.

Regarding transactions costs, sure, having a few huge incumbent firms makes such negotiation much easier–but that’s absolutely the wrong benchmark. The right benchmark is one in which there are no patent-related transactions costs, because we don’t have software patents.

Finally, the idea that Tim’s views are somehow infected by value judgments while those of IP-maximalists are not is just hilarious. Any discussion of how rights and liberties ought to be defined and enforced necessarily implicates value judgments. The use of wealth-maximization criteria of efficiency, to cite an obvious metric, has rather clear value judgments built-in, as does a focus on compensation and purchase rather than production and consumption.

Tim and many others have demonstrated over and over and over again that this is almost always the case with software patents.

By doing 1 patent per week?!? Have you looked at any economic patent studies lately that say counter (or support) Tim’s claims of patent stifling competition. There’s a limitation to analyzing one patent per week, and the TLF series focuses more on the technical aspects than how the patents, on net, hurt the industry.

By value judgements in Tim’s arguments, I refer to his many hypotheses and outright dismissal of market indicators, the stock market, the evolution of the software industry and relative performance of various business models. That may be Libertarien, but the extent to which he integrates it into his writings is, as Braden Cox suggests, indicative of his broad support for FOSS and dislike for IPRs.

Hey, not everybody likes IPRs. Fine. And its fun to debate with Tim. But that does not diminish the fact that Braden Cox’s comments are pretty much on the spot.

Tim and many others have demonstrated over and over and over again that this is almost always the case with software patents.

By doing 1 patent per week?!? Have you looked at any economic patent studies lately that say counter (or support) Tim’s claims of patent stifling competition. There’s a limitation to analyzing one patent per week, and the TLF series focuses more on the technical aspects than how the patents, on net, hurt the industry.

By value judgements in Tim’s arguments, I refer to his many hypotheses and outright dismissal of market indicators, the stock market, the evolution of the software industry and relative performance of various business models. That may be Libertarien, but the extent to which he integrates it into his writings is, as Braden Cox suggests, indicative of his broad support for FOSS and dislike for IPRs.

Hey, not everybody likes IPRs. Fine. And its fun to debate with Tim. But that does not diminish the fact that Braden Cox’s comments are pretty much on the spot.

None of the studies of patents that I have seen have convinced me of their worth, no. But let’s put that aside for the moment.

Cox’s comments strike me as wrongheaded in two ways: First, his conclusion that “good programmers write good code, regardless of ideology,” is true but trivial–the point is not indoctrinating programmers but working to free them from patent thickets and the threat of legal sanctions that currently threaten them. It’s institutions that are primarily the concern; norms and informal sanctions (“ideology”?) entered the discussion insofar as they can serve to blunt the destructive impact of the current, deeply misguided, rules in place.

Second, “the enemy of my enemy is my friend” is simply not a sound rule of institutional design or political philosophy. Yes, some communitarian hippies like Open Source. Some of them are vegetarians, too, but that doesn’t mean we should all commit to meat-only diets for fear of allowing them undue leverage. The only way I can make sense of this argument is as follows: 1, reasonable disagreement is acceptable among libertarians about IP; but, 2, any deep divide among influential libertarian groups on this issue means giving legitimacy to the anti-IP side, which has a lot of anti-capitalist communitarians backing it; which then, 3, will help communitarian statists put into place anti-free-market policies more generally, to the detriment of our principles and the world.

But there’s some massive question-begging going on here. From the libertarian anti-IP side, IP is unjust and socially wasteful, at best a nuisance and at worst catastrophic–we’re supposed to roll over on the issue because, what, property itself will be repealed if we ever concede that anti-capitalists managed to get something right? The advice only makes sense if we’re wrong to begin with.

It also seems that there’s some weird goalpost-shifting going on with respect to the ‘taking sides’ issue. From the point of view of libertarian anti-IP folk, companies that are willing to use their IPRs to threaten competitors are using weapons they ought not to have, weapons that threaten the viability of peer-production as a model. To point this out, and to encourage those who care about peer production to use what informal sanctioning mechanisms they can to induce better behavior, is hardly ‘taking sides’ on the issue of selling software versus giving it away, or opening up the source versus keeping it secret (even hardcore anti-IPR folks like me have no problem with keeping secrets!).

Finally, libertarians of all stripes, educated as they are in public-choice principles, should see IP policy as precisely the sort of arena where we should be most skeptical that the particular bargains which have been struck represent just or efficient outcomes as opposed to those most preferred by concentrated and organized interests–including, yes, corporations, which are not all sweetness and light.

None of the studies of patents that I have seen have convinced me of their worth, no. But let’s put that aside for the moment.

Cox’s comments strike me as wrongheaded in two ways: First, his conclusion that “good programmers write good code, regardless of ideology,” is true but trivial–the point is not indoctrinating programmers but working to free them from patent thickets and the threat of legal sanctions that currently threaten them. It’s institutions that are primarily the concern; norms and informal sanctions (“ideology”?) entered the discussion insofar as they can serve to blunt the destructive impact of the current, deeply misguided, rules in place.

Second, “the enemy of my enemy is my friend” is simply not a sound rule of institutional design or political philosophy. Yes, some communitarian hippies like Open Source. Some of them are vegetarians, too, but that doesn’t mean we should all commit to meat-only diets for fear of allowing them undue leverage. The only way I can make sense of this argument is as follows: 1, reasonable disagreement is acceptable among libertarians about IP; but, 2, any deep divide among influential libertarian groups on this issue means giving legitimacy to the anti-IP side, which has a lot of anti-capitalist communitarians backing it; which then, 3, will help communitarian statists put into place anti-free-market policies more generally, to the detriment of our principles and the world.

But there’s some massive question-begging going on here. From the libertarian anti-IP side, IP is unjust and socially wasteful, at best a nuisance and at worst catastrophic–we’re supposed to roll over on the issue because, what, property itself will be repealed if we ever concede that anti-capitalists managed to get something right? The advice only makes sense if we’re wrong to begin with.

It also seems that there’s some weird goalpost-shifting going on with respect to the ‘taking sides’ issue. From the point of view of libertarian anti-IP folk, companies that are willing to use their IPRs to threaten competitors are using weapons they ought not to have, weapons that threaten the viability of peer-production as a model. To point this out, and to encourage those who care about peer production to use what informal sanctioning mechanisms they can to induce better behavior, is hardly ‘taking sides’ on the issue of selling software versus giving it away, or opening up the source versus keeping it secret (even hardcore anti-IPR folks like me have no problem with keeping secrets!).

Finally, libertarians of all stripes, educated as they are in public-choice principles, should see IP policy as precisely the sort of arena where we should be most skeptical that the particular bargains which have been struck represent just or efficient outcomes as opposed to those most preferred by concentrated and organized interests–including, yes, corporations, which are not all sweetness and light.

None of the studies of patents that I have seen have convinced me of their worth…

That’s because patent economics is a difficult field. Only neophytes say they know how innovaiton and patents work. Mark Lemley called patents the most unproductive of academic inquiry, because we still know very little about their overall effect. Still, there is substantial evidence patents represent the evolution of the software industry and provide benefits to those who obtain them (per Professors Ronald Mann, John Allison, Mark Lemley, Dan Burk, Ken Dam, Donald Chisum, David Mowery, Henry Chesbrough, Iain Cockburn, Joshua Lerner, need I name more?). I can email you many links to reviews I’ve done on the literature. If you are not convinced by economic research, I don’t see how one patent per week is more persuasive…

On the other hand, it strikes me as a bit amusing that software patent critics often cite the least credible sources of arguments against software patents, while ignoring industrial economists who dislike software patents as much, yet are even respected by software patent proponents.

Cox’s comments strike me as wrongheaded in two ways: First, his conclusion that “good programmers write good code, regardless of ideology,” is true but trivial–the point is not indoctrinating programmers but working to free them from patent thickets and the threat of legal sanctions that currently threaten them.

First, although there is debate over IP, nobody questions the qualifications of programmers on either side of the issues. Second, what evidence is there that programmers are somehow stifled by IP law. Its funny you use the term patent thickets. Carl Shapiro, Mark Lemley, Dan Burk and Rosemarie Zeidonis all use this term, but their focus is on industries other than software.

You raise other good issues, but I don’t want to stray far from Braden Cox’s post. Email me if you want to continue the tangential discussions.

None of the studies of patents that I have seen have convinced me of their worth…

That’s because patent economics is a difficult field. Only neophytes say they know how innovaiton and patents work. Mark Lemley called patents the most unproductive of academic inquiry, because we still know very little about their overall effect. Still, there is substantial evidence patents represent the evolution of the software industry and provide benefits to those who obtain them (per Professors Ronald Mann, John Allison, Mark Lemley, Dan Burk, Ken Dam, Donald Chisum, David Mowery, Henry Chesbrough, Iain Cockburn, Joshua Lerner, need I name more?). I can email you many links to reviews I’ve done on the literature.
If you are not convinced by economic research, I don’t see how one patent per week is more persuasive…

On the other hand, it strikes me as a bit amusing that software patent critics often cite the least credible sources of arguments against software patents, while ignoring industrial economists who dislike software patents as much, yet are even respected by software patent proponents.

Cox’s comments strike me as wrongheaded in two ways: First, his conclusion that “good programmers write good code, regardless of ideology,” is true but trivial–the point is not indoctrinating programmers but working to free them from patent thickets and the threat of legal sanctions that currently threaten them.

First, although there is debate over IP, nobody questions the qualifications of programmers on either side of the issues. Second, what evidence is there that programmers are somehow stifled by IP law. Its funny you use the term patent thickets. Carl Shapiro, Mark Lemley, Dan Burk and Rosemarie Zeidonis all use this term, but their focus is on industries other than software.

You raise other good issues, but I don’t want to stray far from Braden Cox’s post. Email me if you want to continue the tangential discussions.

The recent Samba team response is clear: the GPL is a zero-sum game — you exploit open source software for your gain to the detriment of others

That’s not how I read the Samba team response at all. In fact they’re saying quite the contrary:

One of the fundamental differences between the proprietary software world and the free software world is that the proprietary software world divides users by forcing them to agree to coercive licensing agreements which restrict their rights to share with each other, whereas the free software world encourages users to unite and share the benefits of the software.

The patent agreement struck between Novell and Microsoft is a divisive agreement. It deals with users and creators of free software differently depending on their “commercial” versus “non-commercial” status, and deals with them differently depending on whether they obtained their free software directly from Novell or from someone else.

The GPL sets up a non-zero-sum game, by ensuring that a work can be shared freely by all recipients. Software idea patents attempt to revert to a zero-sum game, by dividing each recipient against the others.

The recent Samba team response is clear: the GPL is a zero-sum game — you exploit open source software for your gain to the detriment of others

That’s not how I read the Samba team response at all. In fact they’re saying quite the contrary:

One of the fundamental differences between the proprietary software world and the free software world is that the proprietary software world divides users by forcing them to agree to coercive licensing agreements which restrict their rights to share with each other, whereas the free software world encourages users to unite and share the benefits of the software.

The patent agreement struck between Novell and Microsoft is a divisive agreement. It deals with users and creators of free software differently depending on their “commercial” versus “non-commercial” status, and deals with them differently depending on whether they obtained their free software directly from Novell or from someone else.

The GPL sets up a non-zero-sum game, by ensuring that a work can be shared freely by all recipients. Software idea patents attempt to revert to a zero-sum game, by dividing each recipient against the others.

1. If you don’t like patents use the GPL
2. Make your GPL software far more modular
3. Ensure all GPL modules are easily obtainable on file-sharing networks (secure hashes, etc.)
4. As soon as any module is determined to infringe patents, write a non-infringing variation of the module.
5. Cease all use and distribution of the infringing module.
6. Publish an advisory notice that patent holder X is exercising patent P which covers module(s) M (source code and identifiers provided)
7. Distributors always ship module assemblies that are not yet known to infringe patents
8. Distributors and end users who license the respective patents are always free to avail themselves of the patented modules available on file-sharing networks.
9. As soon as licenses expire the modules can be swapped out in a few minutes.
10. People remain free to enhance patented modules in pursuit of patents on those enhancements. After all, the point of patents is to spur innovation and encourage the publication of innovative software based inventions.

I presume that being published, the details of a software patent may be freely distributed, and that a software patent may include source code that demonstrates the design. This also no doubt applies to proposals for patent enhancements as exchanged between innovators in the course of their discussions and exploration of potential improvements.

A patent grants an exclusive monopoly on implementations (binaries), distribution of implementations, and exploitation of those implementations (execution).

<ol>
<li>If you don’t like patents use the GPL
</li><li>Make your GPL software far more modular
</li><li>Ensure all GPL modules are easily obtainable on file-sharing networks (secure hashes, etc.)
</li><li>As soon as any module is determined to infringe patents, write a non-infringing variation of the module.
</li><li>Cease all use and distribution of the infringing module.
</li><li>Publish an advisory notice that patent holder X is exercising patent P which covers module(s) M (source code and identifiers provided)
</li><li>Distributors always ship module assemblies that are not yet known to infringe patents
</li><li>Distributors and end users who license the respective patents are always free to avail themselves of the patented modules available on file-sharing networks.
</li><li>As soon as licenses expire the modules can be swapped out in a few minutes.
</li><li>People remain free to enhance patented modules in pursuit of patents on those enhancements. After all, the point of patents is to spur innovation and encourage the publication of innovative software based inventions.</li>
</ol>

I presume that being published, the details of a software patent may be freely distributed, and that a software patent may include source code that demonstrates the design. This also no doubt applies to proposals for patent enhancements as exchanged between innovators in the course of their discussions and exploration of potential improvements.

A patent grants an exclusive monopoly on implementations (binaries), distribution of implementations, and exploitation of those implementations (execution).

Software idea patents attempt to revert to a zero-sum game, by dividing each recipient against the others.

Finney, this does not explain how companies collaborate and share technologies through patent licensing. In today’s “open innovation” industry, firms often need to specialize, and then license complementary technologies from others. That does not sound like patents having a net-net dividing effect. If anything, patents’ effect of pitting firms against one another is called inducing competition by allowing appropriation of investment.

FOSS supporters often (not necessarily you) have a warped sense of competition- they claim patents stifle competition, but then ideologically talk themselves out of being commercially competitive. The end result, as Braden Cox points out, is this non-productive perspective that merely says “us vs them.” To justify eliminating software patents by such a concept of “competition” is simply half-hearted.

I’d like to see Sonia Arrison comment on this post. Love some stuff that she’s written on TLF. Very insightful.

Software idea patents attempt to revert to a zero-sum game, by dividing each recipient against the others.

Finney, this does not explain how companies collaborate and share technologies through patent licensing. In today’s “open innovation” industry, firms often need to specialize, and then license complementary technologies from others. That does not sound like patents having a net-net dividing effect. If anything, patents’ effect of pitting firms against one another is called inducing competition by allowing appropriation of investment.

FOSS supporters often (not necessarily you) have a warped sense of competition- they claim patents stifle competition, but then ideologically talk themselves out of being commercially competitive. The end result, as Braden Cox points out, is this non-productive perspective that merely says “us vs them.” To justify eliminating software patents by such a concept of “competition” is simply half-hearted.

I’d like to see Sonia Arrison comment on this post. Love some stuff that she’s written on TLF. Very insightful.

In today’s “open innovation” industry, firms often need to specialize, and then license complementary technologies from others.

Patents are not needed for this. The point of cross-licensing is a cost-analysis of “build it myself” vs. “license the technology I need.” Copyright (and trade secret protection) is sufficient to support that model. Further, overbroad patents (almost a given in the software domain) remove the “build it myself” option, potentially inflating the cost of licensing.

In today’s “open innovation” industry, firms often need to specialize, and then license complementary technologies from others.

Patents are not needed for this. The point of cross-licensing is a cost-analysis of “build it myself” vs. “license the technology I need.” Copyright (and trade secret protection) is sufficient to support that model. Further, overbroad patents (almost a given in the software domain) remove the “build it myself” option, potentially inflating the cost of licensing.

Lewis, I’m curious. So, you like copyrights for software more than patents. Do you propose the current copyright regime, under the DMCA, or some kind of scaled back policy.

I ask, because, as pointed out above, Tim wants to eliminate software patents, but he also wants to repeal the DMCA. I’m not sure if he’s just attacking IPRs from all sides, or if he has a unitary concept in mind. Put together, his views on patents and the DMCA effectively emasculate any meaningful protection fot software.

Lewis, I’m curious. So, you like copyrights for software more than patents. Do you propose the current copyright regime, under the DMCA, or some kind of scaled back policy.

I ask, because, as pointed out above, Tim wants to eliminate software patents, but he also wants to repeal the DMCA. I’m not sure if he’s just attacking IPRs from all sides, or if he has a unitary concept in mind. Put together, his views on patents and the DMCA effectively emasculate any meaningful protection fot software.

Noel, there’s this thing called “copyright.” You may have heard of it. It existed prior to the passage of the DMCA, and will continue to exist after its repeal. It’s the primary form of “protection” used by the software industry. It’s far more significant for software than patents or anticircumvention rights. I don’t think I’ve ever written anything indicating I’m against software copyrights.

Noel, there’s this thing called “copyright.” You may have heard of it. It existed prior to the passage of the DMCA, and will continue to exist after its repeal. It’s the primary form of “protection” used by the software industry. It’s far more significant for software than patents or anticircumvention rights. I don’t think I’ve ever written anything indicating I’m against software copyrights.

So, tell me, if you know what copyright is, how far back do you want to take the software industry. The industry has evolved, and its policies must as well.

Copyright was significantly given a demotion after Lotus v Borland when firms began to rely more on patents.

Check out some literature on copyrights and patents as substitutes/compliments in the MODERN software industry. Authors of note include Mowery, Graham, Lerner, and a couple others. Patents are now the dominent form of protection.

So, tell me, if you know what copyright is, how far back do you want to take the software industry. The industry has evolved, and its policies must as well.

Copyright was significantly given a demotion after Lotus v Borland when firms began to rely more on patents.

Check out some literature on copyrights and patents as substitutes/compliments in the MODERN software industry. Authors of note include Mowery, Graham, Lerner, and a couple others. Patents are now the dominent form of protection.

Patents are now the dominent form of protection.

You can’t possibly mean that. You’re telling me that if Microsoft had a choice between giving up its patent portfolio or its copyrights on Windows and Office, they’d opt to keep their patents? That’s absurd.

Patents are now the dominent form of protection.

You can’t possibly mean that. You’re telling me that if Microsoft had a choice between giving up its patent portfolio or its copyrights on Windows and Office, they’d opt to keep their patents? That’s absurd.

Noel, you’re right on the importance of patents.

The market for GPL developers like the Samba team is like the market for mechanics, in that they’re expected to bring their own tools. The GPL’s “patent kill switch” is like an agreement between the mechanic and the employer that the mechanic will be allowed to take his tools home if he quits or gets fired.

Garages could offer to pay mechanics less and provide tools, and mechanics could agree to work for less if allowed to use the garage’s tools, but both mechanics and garages seem to prefer the current arrangement. The person in the position to damage or care for the tools has an incentive to protect them and upgrade them.

Noel, you’re right on the importance of patents.

The market for GPL developers like the Samba team is like the market for mechanics, in that they’re expected to bring their own tools. The GPL’s “patent kill switch” is like an agreement between the mechanic and the employer that the mechanic will be allowed to take his tools home if he quits or gets fired.

Garages could offer to pay mechanics less and provide tools, and mechanics could agree to work for less if allowed to use the garage’s tools, but both mechanics and garages seem to prefer the current arrangement. The person in the position to damage or care for the tools has an incentive to protect them and upgrade them.

The key word here is liberty – the public’s liberty to enjoy its rightful property.

Making any promises on behalf of the public that they would gladly sustain a suspension of their liberty in exchange for delivery of even more work into the public domain, was not actually a deal the public would have tolerated.

The public may well have turned a blind eye to a few publishers consenting to the institution of monopolies, or even a few manufacturers doing this, but not the general public themselves.

The thing is, the public are now all artists, authors, publishers, software developers, manufacturers and users.

And the IP maximalists say “But don’t you want to enjoy the benefit of tieing the hands of all your fellows?”

“No. We never made that deal with the devil. You did.”

The people want their public domain back. Artists, authors, software developers, are all asserting their right to liberty, their right to freedom of expression, their right to create software and not be sued by the devil’s corporations.

So, ditch copyright, patents, and the DMCA. And while you’re at it, tidy up trademarks.

The key word here is liberty – the public’s liberty to enjoy its rightful property.

Making any promises on behalf of the public that they would gladly sustain a suspension of their liberty in exchange for delivery of even more work into the public domain, was not actually a deal the public would have tolerated.

The public may well have turned a blind eye to a few publishers consenting to the institution of monopolies, or even a few manufacturers doing this, but not the general public themselves.

The thing is, the public are now all artists, authors, publishers, software developers, manufacturers and users.

And the IP maximalists say “But don’t you want to enjoy the benefit of tieing the hands of all your fellows?”

“No. We never made that deal with the devil. You did.”

The people want their public domain back. Artists, authors, software developers, are all asserting their right to liberty, their right to freedom of expression, their right to create software and not be sued by the devil’s corporations.

So, ditch copyright, patents, and the DMCA. And while you’re at it, tidy up trademarks.

Tim writes:You can’t possibly mean that. You’re telling me that if Microsoft had a choice between giving up its patent portfolio or its copyrights on Windows and Office, they’d opt to keep their patents? That’s absurd.

No, your statement is absurd. Microsoft spends much more on patented technology. On the other hand, you could say that all code is copyrighted, but still, prominent investments are made with patenting in mind.

Tim writes:You can’t possibly mean that. You’re telling me that if Microsoft had a choice between giving up its patent portfolio or its copyrights on Windows and Office, they’d opt to keep their patents? That’s absurd.

No, your statement is absurd. Microsoft spends much more on patented technology. On the other hand, you could say that all code is copyrighted, but still, prominent investments are made with patenting in mind.

Microsoft spends much more on patented technology.

I don’t even know what this means. Almost everything Microsoft sells is (or at least contains a lot of) software. All of their software is copyrighted. So I don’t see how it would even be possible for them to spend “much more” on patented technology than copyrighted technology.

It’s probably true that almost everything they do is covered by both patent and copyright. But I repeat my question: do you really think that Microsoft would give up its copyrights before it would give up its patent portfolio? Seriously?

Microsoft spends much more on patented technology.

I don’t even know what this means. Almost everything Microsoft sells is (or at least contains a lot of) software. All of their software is copyrighted. So I don’t see how it would even be possible for them to spend “much more” on patented technology than copyrighted technology.

It’s probably true that almost everything they do is covered by both patent and copyright. But I repeat my question: do you really think that Microsoft would give up its copyrights before it would give up its patent portfolio? Seriously?

OK I see your point on “spending more on patented rather than copyrighted technology.” All of their software is copyrighted, but the big investments go into products intended to be enforced through patents. The big difference between patents and copyrights for MIcrosoft is probably the patent rule against independent invention.

WOuld Microsoft give up patents before copyrights? Well, it leverages both as complements. I don’t think it would give up either. In other words, its impossible to answer your question.

OK I see your point on “spending more on patented rather than copyrighted technology.” All of their software is copyrighted, but the big investments go into products intended to be enforced through patents. The big difference between patents and copyrights for MIcrosoft is probably the patent rule against independent invention.

WOuld Microsoft give up patents before copyrights? Well, it leverages both as complements. I don’t think it would give up either. In other words, its impossible to answer your question.

The big investments go into products intended to be enforced through patents.

Such as?

The big investments go into products intended to be enforced through patents.

Such as?

Let me qualify that. The big investments go into technologies (not necessarily products) intended to be enforced through patents.”

Email Microsoft Research and ask them what technologies! http://www.microsoft.com/about/legal/intellectualproperty/ipventures/default.mspx

Let me qualify that. The big investments go into technologies (not necessarily products) intended to be enforced through patents.”

Email Microsoft Research and ask them what technologies! http://www.microsoft.com/about/legal/intellectualprope...

Well, based on Tim’s and other’s comments so far I guess the most relevant of the open questions I pose in the second paragraph of my post is the second one regarding software patents. The MS / Novell deal legitimizes, to a certain degree, the patenting of software (or at least Microsoft’s patents).

I’d like to see patent reform, and politically this is a bipartisan issue (see S.3818 Hatch / Leahy patent reform bill). There’s a host of procedural and substantive changes that can make the system of obtaining and litigating patents more efficient, less costly, and fairer, especially for small businesses. However, I don’t advocate scrapping software patents. Strengthening the obviousness standard and enhancing disclosures of prior art will go a long way toward ridding the system of bad patents, while still rewarding the deserving. This is the best way of reducing the patent thicket that X.Trapnel referenced and inflated licensing costs Lewis noted, but still retain the patent incentives/rewards system.

As for whether Novell violates the GPL, or at least the community spirit of the GPL — well, the FOSS community may be the best judge and jury for this determination. And the market, generally, will determine whether the partnership is a good thing for the shareholders and customers of each company.

X.Trapnel is rightly concerned about public choice theory and its application to IP policy. Has U.S. patent policy been gamed in favor of large companies? I often hear the opposite — that patents help protect small inventors against large corporate bullies. But I still think our patent system should work better for small business and entrepreneurs (and everyone, really).

My prediction – we’ll see more covenants not to sue from IP rights owners, market forces will push open source and proprietary software makers into other forms of partnership arrangements, and the vast majority of consumers will benefit as a result.

Well, based on Tim’s and other’s comments so far I guess the most relevant of the open questions I pose in the second paragraph of my post is the second one regarding software patents. The MS / Novell deal legitimizes, to a certain degree, the patenting of software (or at least Microsoft’s patents).

I’d like to see patent reform, and politically this is a bipartisan issue (see S.3818 Hatch / Leahy patent reform bill). There’s a host of procedural and substantive changes that can make the system of obtaining and litigating patents more efficient, less costly, and fairer, especially for small businesses. However, I don’t advocate scrapping software patents. Strengthening the obviousness standard and enhancing disclosures of prior art will go a long way toward ridding the system of bad patents, while still rewarding the deserving. This is the best way of reducing the patent thicket that X.Trapnel referenced and inflated licensing costs Lewis noted, but still retain the patent incentives/rewards system.

As for whether Novell violates the GPL, or at least the community spirit of the GPL — well, the FOSS community may be the best judge and jury for this determination. And the market, generally, will determine whether the partnership is a good thing for the shareholders and customers of each company.

X.Trapnel is rightly concerned about public choice theory and its application to IP policy. Has U.S. patent policy been gamed in favor of large companies? I often hear the opposite — that patents help protect small inventors against large corporate bullies. But I still think our patent system should work better for small business and entrepreneurs (and everyone, really).

My prediction – we’ll see more covenants not to sue from IP rights owners, market forces will push open source and proprietary software makers into other forms of partnership arrangements, and the vast majority of consumers will benefit as a result.

Lewis, I’m curious. So, you like copyrights for software more than patents. Do you propose the current copyright regime, under the DMCA, or some kind of scaled back policy.

I ask, because, as pointed out above, Tim wants to eliminate software patents, but he also wants to repeal the DMCA. I’m not sure if he’s just attacking IPRs from all sides, or if he has a unitary concept in mind. Put together, his views on patents and the DMCA effectively emasculate any meaningful protection fot software.

The software industry seems to be doing just fine without the (anti-circumvention clause of the) DMCA, since many (most?) programs are distributed without DRM to protect the executable code (and thus the DMCA does not apply). It is thus clear to me that the DMCA currently does not provide “meaningful protection” to software, simply by vendors’ decisions not to implement DRM.

Copyright is the best choice as it restricts a content owner’s claims to the actual implementation of an idea and not *all* implementations, as a software patent necessarily will do. Tim and others have said this before in much greater depth.

Lewis, I’m curious. So, you like copyrights for software more than patents. Do you propose the current copyright regime, under the DMCA, or some kind of scaled back policy.

I ask, because, as pointed out above, Tim wants to eliminate software patents, but he also wants to repeal the DMCA. I’m not sure if he’s just attacking IPRs from all sides, or if he has a unitary concept in mind. Put together, his views on patents and the DMCA effectively emasculate any meaningful protection fot software.

The software industry seems to be doing just fine without the (anti-circumvention clause of the) DMCA, since many (most?) programs are distributed without DRM to protect the executable code (and thus the DMCA does not apply). It is thus clear to me that the DMCA currently does not provide “meaningful protection” to software, simply by vendors’ decisions not to implement DRM.

Copyright is the best choice as it restricts a content owner’s claims to the actual implementation of an idea and not *all* implementations, as a software patent necessarily will do. Tim and others have said this before in much greater depth.

groklaw — Microsoft admits patent peace is not perfect

Microsoft’s Jason Matusow is saying “… I think it important for the community to know that Nat Friedman and Miguel de Icaza from Novell have been extremely clear with us that the existing covenant is not good enough – they are being excellent advocates for OSS developers. … I have to tell you that the issues with getting this covenant right are incredibly complex and there are real concerns on all sides.“

Also in Fortune article “Is the Microsoft-Novell deal dead on arrival?” : Moglen offered no opinion on whether the Microsoft-Novell deal violates the GPL currently in effect (known as version 2), but merely pledged that version 3 would clearly bar such “discriminatory” deals.

groklaw — Microsoft admits patent peace is not perfect


Microsoft’s Jason Matusow is saying “… I think it important for the community to know that Nat Friedman and Miguel de Icaza from Novell have been extremely clear with us that the existing covenant is not good enough – they are being excellent advocates for OSS developers. … I have to tell you that the issues with getting this covenant right are incredibly complex and there are real concerns on all sides.“


Also in Fortune article “Is the Microsoft-Novell deal dead on arrival?” : Moglen offered no opinion on whether the Microsoft-Novell deal violates the GPL currently in effect (known as version 2), but merely pledged that version 3 would clearly bar such “discriminatory” deals.

Noel Le said above:

..Still, there is substantial evidence patents represent the evolution of the software industry and provide benefits to those who obtain them..

That’s not the point. Patents may in fact benefit the holder, but not benefit the public at all. Recall Adam Smith:

The interest of the dealers, however, in any particular branch of trade or manufactures, is always in some respects different from, and even opposite to, that of the public. To widen the market and to narrow the competition, is always the interest of the dealers. To widen the market may frequently be agreeable enough to the interest of the public; but to narrow the competition must always be against it, and can serve only to enable the dealers, by raising their profits above what they naturally would be, to levy, for their own benefit, an absurd tax upon the rest of their fellow-citizens. The proposal of any new law or regulation of commerce which comes from this order ought always to be listened to with great precaution, and ought never to be adopted till after having been long and carefully examined, not only with the most scrupulous, but with the most suspicious attention. It comes from an order of men whose interest is never exactly the same with that of the public, who have generally an interest to deceive and even to oppress the public, and who accordingly have, upon many occasions, both deceived and oppressed it.

Noel Le said above:

..Still, there is substantial evidence patents represent the evolution of the software industry and provide benefits to those who obtain them..

That’s not the point. Patents may in fact benefit the holder, but not benefit the public at all. Recall Adam Smith:

The interest of the dealers, however, in any particular branch of trade or manufactures, is always in some respects different from, and even opposite to, that of the public. To widen the market and to narrow the competition, is always the interest of the dealers. To widen the market may frequently be agreeable enough to the interest of the public; but to narrow the competition must always be against it, and can serve only to enable the dealers, by raising their profits above what they naturally would be, to levy, for their own benefit, an absurd tax upon the rest of their fellow-citizens. The proposal of any new law or regulation of commerce which comes from this order ought always to be listened to with great precaution, and ought never to be adopted till after having been long and carefully examined, not only with the most scrupulous, but with the most suspicious attention. It comes from an order of men whose interest is never exactly the same with that of the public, who have generally an interest to deceive and even to oppress the public, and who accordingly have, upon many occasions, both deceived and oppressed it.