The Patent War of All Against All
“Hereby it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man. For war consisteth not in battle only, or the act of fighting, but in a tract of time, wherein the will to contend by battle is sufficiently known: and therefore the notion of time is to be considered in the nature of war, as it is in the nature of weather. For as the nature of foul weather lieth not in a shower or two of rain, but in an inclination thereto of many days together: so the nature of war consisteth not in actual fighting, but in the known disposition thereto during all the time there is no assurance to the contrary. All other time is PEACE.”
Hobbes, Leviathan, Chapter XIII, paragraph 8
Glyn Moody has written a post about a system called U-Prove. Glyn notes that the software is being licensed under a BSD licence and notes that is a good thing, but then observes that there is a patent encumbrance on the code, and indicates this is a bad thing. In a comment, Sam Ramji refers off to this article of mine, kindly remarking it is a ‘good post’.
The essence of Glyn’s argument is that the OSP does not preserve the freedom of free software, so it is not sufficient. Sam appears to be adopting my comments to the effect that it’s hard to single out one company for the patent blame game.
In the context of free software patents are problematic. In the ideal world patents on software wouldn’t exist and there wouldn’t be a problem. However, they do exist. Moreover, part of the reason they exist is because of a variation of mutually assured destruction – many businesses believe they need to acquire patents in order to defend against other patents.* Jonathan Schwartz sets out some of the sad, tawdry circumstances in which this logic plays out here.
I think it is a non trivial problem to find wording which preserves just the defensive potential of patents (which, is actually their offensive potential limited to specific circumstances of exercise) while preserving freedom when licensing software. Some of the more detailed free software licences attempt this. It is, I think, a more difficult problem to craft such wording to apply to standards – because standards purport to be agreed by some collection of people, while freedom requires that everyone be permitted to pursue their own goals. Thus, any ‘promise’ or ‘covenant’** which is limited to an agreed specification must necessarily be inconsistent with freedom in a way qualitatively different to a patent clause in an open source licence. Moreover, any wording which applies to a particular version of a specification will be inconsistent with the evolution of that specification. In short, promises made in relation to specifications are likely to always be problematic (the best to hope for is a disclaimer – per W3C).
Therefore, if the words themselves are likely inadequate, the issue of who is saying the words, and what one can reasonably read into them becomes much more important. In the OSP post that Sam refers to I explicitly reference another, earlier, article on the OSP which calls this issue out. With this in mind, I note that Microsoft has recently chosen to specifically draw out the Linux/open source angle in its cross licensing deals with Amazon and IO Data. It didn’t need to, but presumably chose to. It seems reasonable to conclude this is signaling. These are grounds that would justify a reasonable person finding the OSP inadequate.
If Microsoft wants people like Glyn to trust them, they should perhaps incline against, rather than toward making the will to contend by battle […] sufficiently known.
* This, by the way, is much the same argument used by Hobbes in favour of the need for a common power to counter the war of all against all (hence the quote above). In this case however the common power (parliament) rather than saving us from a state of war of all against all has plunged some of us into a version of it.
** (I distrust these words – if it is a licence why not call it that, but perhaps they are US terms of art?)
 ‘…said Horacio Gutierrez, corporate vice president and deputy general counsel, in the news release. “Microsoft’s patent portfolio is the largest and strongest in the software industry, and this agreement demonstrates … our ability to reach pragmatic solutions to IP issues regardless of whether proprietary or open source software is involved.” The press release is here, it doesn’t fall over itself as much as the IO Data one below.
 ‘...said David Kaefer, Microsoft general manager of intellectual property, in a statement announcing the latest deal. “Microsoft has a strong track record of collaboration with companies running Linux-based offerings, and this agreement is a reflection of our commitment to partner with industry leaders around the world.” ‘ In fact, on Microsoft’s press release page (at 12 March 2010) the call out comprises of the words: “I-O Data customers will receive patent covenants for their use of devices running Linux and related open source software.” The press release is at pains to refer to it.