Accommodating Open Source In Standards Processes

Holders of zero-tolerance positions on both sides of the divide need to realise that accommodating open source productively inside standards bodies is both viable and happening now.

A fine balance

You’ll recall that open source and open standards are orthogonal concepts where even the words they share (like “open”) are defined differently. That doesn’t mean they are mutually exclusive, nor that they are bad together – they can be cultivated well in the same garden. There is great value from accommodating the two orthogonal concepts so that neither is invalidated by non-mandatory elements of the other. When they combine, great value is unleashed.

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FOSS vs FRAND is a collision of worldviews

Of late there have been a number of interventions sponsored by the world’s largest and most profitable tech patent holders to muddy the waters about open source and FRAND licensing of patents in standards by arguing contentious minutiae like the intent of the authors of the BSD license. This is happening because of the clash of industries I wrote about in 2016, with companies fundamentally based on extracting patent royalties unable to imagine any other way of doing business so mistaking the issue of FRAND as being about license compliance rather than as it being an obstacle to the very purpose of open source in commercial software — collaboration with others.

I found an amazing number of experienced and expert colleagues across industries failing to grasp this fundamental, so I’ve written a paper 🗎 about it. Published today by Open Forum Europe, it explains why compliance legalities are the wrong lens for studying the issue and introduces terms for exploring why representatives from different industry background fail to understand each other despite apparently using the same terminology (spoiler: they mean different things by the same words).

Many thanks to the colleagues who have made valuable suggestions that have improved the clarity of the document, and to the various patrons who have contributed to covering my time. Get in touch if you’d like me to come to your event or company and talk about these things.

The Legislative Disconnect Of The Meshed Society

What is the “meshed society”? It is people, joined together by the Internet, able to interact — to collaborate, to create, to transact and to relate directly with each other — without the need for another person to mediate or authorise. As we discover more and more ways to disintermediate our interactions, society is transformed: from a series of hubs with privileged interconnecting spokes intermediating supply to consumers at their tips, into a constantly shifting meshed “adhocracy” of temporary connections, transactions and relationships of varying length. In the adhocracy, individuals play the roles of user, repurposer, maker, buyer, investor and collaborator in a constantly changing spectrum of combinations.  Continue reading

Can PatentLeft Save Us?

Is it possible to hack the patent system to make patents unusable in the tech industry, like copyleft hacked patent law?

cof

The word “copyleft” arises from a clever hack by Richard Stallman who used the laws relating to copyright — a statutory device to incent creativity by granting limited monopolies to creators — to create a world where creators are incented to share instead of monopolise their work.  Continue reading

MP3 Is Dead! Long Live MP3!

Ignore the coverage saying MP3 is dead. Now all the patents blocking it have expired, it can start to live!

Finally Free

Back in May, there was an unexpected surge in press coverage about the MP3 audio file format. What was most unexpected about it was it all declared that the venerable file format is somehow “dead”. Why did that happen, and what lessons can we learn?
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5 Reasons Facebook’s React License Was A Mistake

Facebook’s BSD+Patent license combo fails not because of the license itself but because it ignores the deeper nature of open source.

Beware Falling Rocks

In July 2017, the Apache Software Foundation effectively banned the license combination Facebook has been applying to all the projects it has been releasing as open source. They are using the 3-clause BSD license (BSD-3), a widely-used OSI-approved non-reciprocal license, combined with a broad, non-reciprocal patent grant but with equally broad termination rules to frustrate aggressors.
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Apache Bans Facebook’s License Combo

The Apache Software Foundation has moved the “Facebook BSD+Patent grant” license combination (FB+PL) to its “Category X” licensing list, effectively banning inclusion of any software under FB+PL from Apache projects. That included RocksDB, which has consequently just dropped FB+PL and added the Apache License v2 on Github, and React.JS which does not look like it will resolve the issue so fast.

Update, 22 September: Facebook has announced it will switch React to the MIT license.
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Here’s what we know so far (subject to updates, last day’s in green, latest marked 🆕): Continue reading

FRAND Is Not A Compliance Issue

The European Commission has been persuaded by lobbyists to change its position on standards to permit the use of FRAND license terms for patents applicable to technologies within those standards. This is a massive mistake that will harm innovation by chilling open source community engagement.

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Community Credentials

Simon was surprised when he went to the Microsoft press release page looking for the news about Linux support for SQL Server and joining Eclipse. He found that the only press release related to Linux was about patent licensing. He’s written about it today on InfoWorld and expanded the thought on his blog.

FRAND Is Always Discriminatory

I participated in a study asking about the fairness, reasonableness and non-discriminatory nature of FRAND licensing in the context of licensing of patents in standards. I was surprised to find people there asserting there was no conflict between FRAND licensing and open source software. Here’s a simple explanation why that’s wrong.

Since patent licensing is by definition bilateral, and since open source communities that aren’t run by a single vendor are by definition multi-lateral, any standard which includes patents that require licensing discriminates against true multi-participant open source implementation. By definition, patent licensing as a precondition of implementation of a standard cannot ever be non-discriminatory. Even zero-fee licensing is discriminatory as it still requires implementers to seek permission, the antithesis of open source.