Intellect or Insanity, Jonathan Klinger's Blog

Software patents are a problem, not a solution; that’s why when the Israeli Patent Registrar wanted to hear what the public thinks of them, we (at Hamakor, Israel’s Free Software and Open Source Association) wrote a detailed paper about it; in the end, the Israeli Patent Registrar gave a final decision stating that software by itself is not patentable in Israel [Hebrew Link]. However, other jurisdictions may not think the same.

That’s why corporations like Microsoft tend to use software patents as a strategic whip; for example, Microsoft approached HTC with a patent settlement offer, that will cause HTC to pay 5 US$ for every Android mobile device it sells. The thing is that Microsoft directly competes with Android with its “Windows Phone” operating system. Therefore, Microsoft makes more money when its competitors sell Android devices than when it sells its Windows Phone. But, of course, that the problem, not the solution.

Yesterday, David Drummond, Google’s chief legal counsel, ranted in the official Google blog about this conduct (covered also by TechCruch). He said that ”
A smartphone might involve as many as 250,000 (largely questionable) patent claims, and our competitors want to impose a “tax” for these dubious patents that makes Android devices more expensive for consumers“. The thing is that Drummond is also relating to the problem, and not the solution.

Recently, Android had became less and less of Open Source and more proprietary, where Google refused to release Android’s source code. Also, the choice of non-GPL license caused it to be less free. Of course, this lead Google further from the Solution.

The solution to Patent Trolling in the Android market segment is inherent with free software: detach the software distribution from hardware distribution. When people can purchase the devices and then install their OS at home, when they download it for free from the Internet, then these Patent Trolls will have to go against the actual distributor: Google.

As you know, Google, unlike other software companies, has the backbone and endurance to go into legal battle and keep the software segment patent-free. They did it during their long dispute with Viacom over YouTube and they’ll do it again and again.

The only way to win is to fight.

0.Why are everyone afraid of open source?
One of the most amazing things is that in a material portion of the Share Purchase Agreements (or investment agreements) I’ve reviewed in my life, the invested company was prohibited from using Open Sourced software as a material condition for the investment. The “No-Open-Source” clause was added in companies which a major part of their business model was open source or cloud services, so that in fact there were clauses that excluded the specific Open-Source applications used from the warranty and prohibited the company to utilise any other Open Source application. This prohibition, in my humble opinion, represents and archaic misconception that investment in start-ups is in liquidatable property such as patents or copyrights, and not in the persons behind the company.

1. Why is the cellular market afraid of open source?
Both Apple and Microsoft are afraid of Open-Source. Apple recently banned the open sourced VLC player to attend its cellular festivities as it was released under the popular GPL (and a funny story with XPilot) and so does the Windows Phone 7 developer agreement which states that open sourced software may not be distributed by the WP7 marketplace (which caused several developers to change their licensing models). But Microsoft and Apple’s prohibition comes from ignorance in regarding to the licenses more than anything.

2. About Microsoft’s misconception?
Microsoft prohibits inclusion of what they refer to as “Excluded Licenses”, which are “any license requiring, as a condition of use, modification and/or distribution of the software subject to the license, that the software or other software combined and/or distributed with it be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge” (clause 1.l) but, open source licenses apply only when there is distribution of the software, and not when there’s use, therefore, many cloud services use open sourced software (as they don’t distribute the code, only use it). A clause prohibiting excluded licenses in any software reigns over applications developed for WM6.x and WP7. In some portions of the application are server side or server dependant, some interesting questions raised.

3. Open source prohibition and cloud computing?
This next case is purely theoretical: Facebook, which bases most of its activity on open source infrastructure, develops a Windows Phone 7 application which interacts with the Facebook servers which are under open source licenses. While these open source components are used, they are definitely not distributed and therefore the draconian clauses of Microsoft’s license are terrible. A better example would be more feasible; imagine that some person grabs Wikipedia and creates a mobile application; Wikipedia’s content is released under a Creative Commons license which allows free distribution as long as any amendment or contribution is distributed under the same license. Now, Microsoft may come to the developer in questions and claim that clause 5.e to the developer agreement was in breach and remove Wikipedia from its marketplace.

4. Why Microsoft was afraid of Open Source??
Microsoft’s scare from open source licenses is clear. Microsoft is terrified from the misconception of the GPL’s viral nature which was perceived as turning all proprietary code which interacts with open-source code turns open-source and is afraid of defending itself against he who comes and asks it to open it’s code. However, this fear is disproportional: like the VCs who heard, somewhere, that there’s a risk in open source and decided to ban it completely, Microsoft detaches itself from a world that can do it only good: Microsoft could have started its marketplace with thousands of free applications from day one and giving it a competitive edge over Apple. Microsoft, however, is afraid of not being able to limit its users, and that’s what it does.

5. So now?
The solution is quite obvious, if Microsoft restricts open source from its playground, it will restrict popular browsers, media players and other software from playing the game and it will fail. There’s no comfort in locking the garden, just another step towards the separation between the proprietary world and the open source one.

[Originally in Hebrew]

Bonus for my English readers, my Open Source Presentation:

Intellectual Property laws have more than a few political implications; many times issues of political speech interfere with copyright. For example, Shepard Fairey, an artist who authored the famous “Hope” poster for Barack Obama, was sought by the Associated Press for copyright infringement as the image of Obama was based on a copyrighted photo (and in Israel, a the Supreme Court will soon hear a similar case, RCA 7774/09 Weinberg v. Weisshoff, where the Defendant is sought for copying a photo the Plaintiff took into a coin made in memory of the assassinated prime minister, Yitzhak Rabin). In another case, the US Senate candidate, Sharon Angle is sought by the proprietors of rights to newspaper articles for presenting copies of the articles which she appeared in, on her personal website and there are more cases; mostly, these cases are borderline in relation to copyright protection, but they are classical monetary suits, not political.

In contrast, the story which was spread on the press during the last few days was not less surprising, but at least ended in an interesting manner. Two days ago, the New York Times reported that the Russian government and police use copyright laws in order to supress political dissidents. The system worked as follows: The Russian police used its granted authority to enforce copyright laws in a violent manner (and it did so in the past, where it sent a school principal to prison for using unauthorized copies of Microsoft Windows) and claimed that copies of Microsoft Windows installed on the dissident organization’s computers are unlicensed (pirated – jk); In Russia, where the unlicensed software rates are only second to the Israeli conviction rates by a person’s confession, it is more than likely that a political organization will use unauthorized software>.

First, it was reported that Microsoft encouraged the enforcement as a part of its zero-tolerance to copyright infringement policy; however, after suffering from damage to its public image, apparently, it decidedto reform its licensing policy, so that a general license will be granted to non-profits in order to protect them from political pursuit. In a post published by Brad Smith, Microsoft Senior VP and Counsel, he explained that Microsoft could not be a part of this and must take an ethical stand.

The claim may be true, but it could also reflect a wise business approach. Until today, Microsoft profited from unlicensed use in 3rd world countries. Microsoft also knows that if raids like this will continue, dissidents will stop using Windows and move to open source software, and primarily Linux, in one distribution or another. Moving to Linux is unilateral, it changes a person’s point of view: from organization that were dependent of a specific software to a part of a larger community; Most organization who hear about open source are enchanted by it, they have an option to donate, contribute, change, share information and not just run the program.

Moreover, Privacy Enhancing Technologies are more available on open source operating systems. From the EXT4 file system which comes by default in Ubuntu and encrypts your hard drives (similar to Microsoft’s BitLocker, but it just works), through TOR servers who reduce censorship: Open Source is the new heaven of dissidents.

Therefore, Microsoft’s blanket license comes to heal a small shallow scratch, not the problem: Copyrights are ill, and Microsoft took the right way to take care of it: acknowledging that non-profit use is fair and allowed. However, until further technologies, innovative ones, will protect dissidents, the raids will continue. Today it’s the operating system, tomorrow, the word processor, afterwards? image editing programs.