For some years now, I've been a Fellow of a European think tank called the OpenForum Academy, which focuses on all things open: open standards, open source, open data, open research, and so on. It's an affiliate of a non-profit called OpenForum Europe, which advocates for same causes bofore the legislature and agencies of the European Union and those of its constituent states. The EU Parliament as well as governemtal agencies and legislatures in the U.K. and elsewhere have been actively engaged on these topics, and have welcomed this input.

OFE Academy is made up principally of an invited group of academics, journalists, technical experts and others that are recognized for their leadership and expertise in the area of openness (you can find a list of them here). Recently, the Academy launched a Fellow interivew series, and this week the interviewee happens to be me. Below I've pasted in a few outtakes from the much longer interview, which you can find here.

Once upon a time, standards were standards and open source software was open source software (OSS), and the only thing people worried about was whether the copyright and patent rules relating to the standards would prevent them from being implemented in OSS. Actually, that was complicated enough, but it seems simple in comparison now that OSS is being included in the standards themselves. Now what?

If this sounds unusual and exotic, it isn’t. In fact, code has been creeping into standards for years, often without the keepers of the intellectual property rights (IPR) Policies governing the standards even being aware of it.

It takes something truly ridiculous to make me write an out and out rant. Still, every now and then I read something that I can’t avoid responding to, because of the degree to which it misrepresents reality in an area I both care about and am knowledgeable in. Yesterday I had that experience when I read an article contending that proprietary eBook formats are good rather than bad, and that while “someday” we may have a truly interoperable eBook format, for now we should just sit back and appreciate proprietary formats in this area.

What rubbish.

Most engineers are aware that patent owners can sue those that infringe their patents. It may surprise them, however to know that a patent owner can also sue someone for only “inducing” another to infringe their patent. Luckily, in both cases, the patent owner only has a right to sue if the other party acted “knowingly.”

As you might expect, the circumstances and facts that are deemed to prove knowledge are the subject of much litigation and many legal opinions. Recently, the U.S. Supreme Court added another decision to the pile, and a distinction that the court drew on this question may surprise you. It should also particularly concern open source software developers, for reasons I’ll return to below.

For all its benefits, one aspect of open source software does cause headaches: understanding the legal terms that control its development and use. For starters, scores of licenses have been created that the Open Source Initiative recognizes as meeting the definition of an “open source license.” While the percentage of these licenses that are in wide use is small, there are significant and important differences between many of these popular licenses. Moreover, determining what rights are granted in some cases requires referring to what the community thinks they mean (rather than their actual text), and in others by the context in which the license is used.

Rather like interpreting the applicability of the U.S. Constitution to modern life, except that there is no Supreme Court available to call the coin toss when people disagree.

Following almost two years of debate, public posting of five drafts, and consideration of 680 comments, IEEE-SA preliminarily approved amendments to its Patent Policy to address these and other questions. IEEE-SA is the developer of the Wi-Fi standards (and thousands of other specifications). It is one of the major standards development venues in the information and communications technology industry, and thus a venue within which the question bears great weight. However, final approval of the amendments was made contingent upon receiving a favorable “Business Review” letter from the U.S. Department of Justice.

In a business review letter, the regulator responds to a detailed explanation and rationale for a proposed action, and indicates whether it would, or would not, be likely to challenge that action if implemented. In this case the DoJ expressed its belief that the proposed actions would be procompetitive rather than restricting competition, and that it would therefore not be inclined to challenge the final approval and implementation of the policy changes. That approval will occur later this month when the proposed policy updates are approved by the IEEE-SA Board of Directors.