Re: [Patents] Re: IBM, Microsoft, BEA Snub W3C

[Russell McOrmond <russell@flora.ca>]

(Removing long CC list of mailing lists I am not a member of, leaving just
the individuals and the patent forum)

On Wed, 23 Apr 2003, Xavi Drudis Ferran wrote:

> Protesting against those who have economical interest in destroying
> their market (by monopolising it) and no obligation to listen to
> protesters is wasting time compared with protesting to elected
> legislators and publicizing the issues.

  Protesting isn't the type of pressure I was thinking of.  While protests
may be good in the short term at raising awareness that there is a
conflict, we need to be fully engaged in suggesting positive policy
alternatives to have any long-term affect at all.

  We are dealing with some interesting political issues here including one
of timing.  We need to promote FLOSS quickly within governments so that
any policy that is anti-FLOSS will get noticed by government FLOSS
participants.  Here I don't just mean governments as simple users but
governments running, studying, adapting, redistributing and generally
exercising as government bodies all the freedoms of Free Software.

  We need to promote governments to participant in standards bodies to
ensure that they notice when policies are made in these bodies which harm
the governments interests.  At the moment governments "as a whole" do not
seem aware of the public policy implications of these patent policy
discussions within standards bodies.

> >   It should be remembered that this is not the only standard that is part
> > of OASIS, with the Open Office technical committee being very important to
> > our community. 
> > http://www.oasis-open.org/committees/tc_home.php?wg_abbrev=office
> 
> An important note, yes. But again, this proves that pressure should go to 
> governemnts, not unaccountable standard bodies. Does anyone knoe why OASIS
> was chosen?. Maybe we do need some more open standard bodies, if the W3C
> is too web-centric, but we can't hope to avoid RAND bodies.

  Anything relating to business interactions makes more sense in OASIS
than in W3C.  "OASIS and the United Nations jointly sponsor ebXML, a 
global framework for e-business data exchange."  It would be useful for 
anyone involved in this discussion to read the ABOUT for OASIS:
  http://www.oasis-open.org/who/


  Some people are assuming bad intentions based on the choice of standards
body, but there may not be any.  There is a problem with software patents
in any standard, but choosing the right standards group for the right
standard is not a negative thing.


  I will next week be giving a presentation on "Office productivity for
government" in a government track to try to accomplish exactly what you
are suggesting http://www.flora.ca/rwl2003/ .  This is not a ;'protest',
but an educational opportunity for government bureaucrats to learn some of
the full policy implications of their software choices.  Thinking of
software as simply something that governments 'use' is entirely
inappropriate given that most governments are already the largest single
producers of software within a given country, although this is currently
primarily software that is only used in-house.

> Well, a patent is not much better just because you use it defensively:
> a- it can be used offensively later when budgets go low or anything

  This is why the non-revocable RF license. This IBM representative didn't
get this either.  He kept asking me to quote any time IBM aggressively
defended a patent, and I told him that this was not relevant.  A
benevolent dictator is still a dictator, and can not be supported.

> b- defensive use means barriers to entry for those who can't afford the
> defense

  I joined the Free Software movement initially because I knew that I
wanted to stay independent, and felt that being part of this "copyright
pool" would provide me better defensive capabilities.  I don't have the
size (nor do I ever want to have the size) to defend myself against a
large predator taking me to court.  By using recognized Free Software
licenses I felt that any assault on my software would be protected by the
Free Software community as a whole given that any harm to the authority of
the license would affect everyone.

  We may all believe that software patents are illegitimate, but a
(questionably corrupt) reality in many parts of the world.  We can all
argue that this is a case of extreme special interests managing to
convince some lower-courts that this was an enforcement issue (copyright
is not 100% enforceable, so therefore stronger protection was needed)
rather than being an economic one (determining the optimum level of
protection required for different classes of software in the context of
all relevant public policy), but this argument isn't going to help us in
day-to-day operations of our businesses.

  RF licenses may not be as good as abolishing software patent, but we may
not get all governments to recognize the economic issues in the short
term.  There are some rather convincing lobbiests on the other side who
have most governments convinced this is an infringement enforcement issue.

  While not always popular in the software community as a whole, as a Free
Software creator I am focused on the following path:

  a) Get governments fully engaged in Free Software, not just as users but 
as producers and redistributors.  We are having pretty good success 
bringing projects out in the open in Canada via an informal group called 
the GOSLING Community <http://www.goslingcommunity.org>.

  b) Get governments fully engaged in standards organizations, trying to 
bring public policy issues into those discussions.  There is work underway 
here in Canada to get participation on standards bodies being recognized 
as an important part of government work, getting positions recognized 
where currently it is far less formal (and far more vulnerable).

  c) Get governments to recognize the need to have a Fair Use (fair
dealings in Canada) regime for patent law.  Given Free Software is a
market failure for patents (we can not just license patents except in the
case of very specialized RF licenses) it would follow that Free Software
should qualify under a Fair Use exception.  This possibility is now in
front of Industry Canada as it was featured in a report on software
patents that I did for ICT branch
<http://www.flora.ca/russell/drafts/software-patent2003.shtml> (update to
be released soon with some important corrections)

  d) Continue to work as "the good guys" in helping the rest of the
software industry deal with software patents.  While a Fair Use exception
would deal with the immediate problems of our community, and some members
are only concerned about Free Software, there are many members who
recognize that software patents create considerable problems for any
non-incumbent monopoly software creator.


> Note that there's an IBM free license which seems to prevent that
> scenario, so who knows?

  Just remember that IBM is large and diverse enough to almost be
considered its own country - the left hand may be trying to cut off the
right, and the head may not even be aware of this yet.  The same is true
of a number of countries such as the USA which is both a strong supporter
of FLOSS at some levels, and opposing FLOSS at others (interface
copyright/DMCA, software patent, lack of anti-trust enforcement).  It is
our job to try to wake these bodies up to their own internal
policy-inconsistency problems.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
 Any 'hardware assist' for communications, whether it be eye-glasses, 
 VCR's, or personal computers, must be under the control of the citizen 
 and not a third party.   -- http://www.flora.ca/russell/