The Standards Blog

Updated 12:45 PM EDT:  The original version of this blog entry was based on an article in the New York Times, and then updated when the related IBM press release became generally available.  For the Back Story on that rewrite, see this entry

The New York Times reported this morning that IBM would announce a new patent policy later today, and described in general what the terms of that policy might be.  IBM clearly hopes that this move will increase pressure on other companies to accelerate efforts to improve the quality of software patents, which is an issue of interest and concern to a broad audience, and particularly those that participate in the development of, or that use, open source software. 

The press release that issued later in the day states that the new policy applies to IBM's operations worldwide, and is based on four "tenets:"

• Patent applicants are responsible for the quality and clarity of their patent applications.
• Patent applications should be available for public examination.
• Patent ownership should be transparent and easily discernable.
• Pure business methods without technical merit should not be
  patentable.   

The Times article states that IBM is seeking to lead the market towards patent reform, despite the lagging efforts of Congress to improve the quality of software patents, which are widely regarded as being too easy to get, and too expensive and difficult to challenge.                                     

In what seems to me to be a petty display of childishness, Google has refused to post at its own Websites in Belgium the news of a recent defeat it suffered in a Belgian courtroom.  In contrast to the thousands of other news items that are automatically Hoovered on to its News page on a daily basis, Google claimed that the news had been so widely reported that reporting it at its Belgian news site was unnecessary and "disproportionate." 

The New York Times, which has been reporting regularly on the subject, reported yesterday in two related stories (the second one is here) that the judge in the suit rejected Google's contention. 

The dispute itself relates to whether the thumbnail images, headlines and news summaries that Google reproduces at its Google News site violate the copyright of the news content owners to which it links.  I blogged on this issue a few days ago, in the context of a recently announced settlement between Google and the Associated Press, under which the AP will allow Google to continue to display its content, although at a new area of its site, and subject to an agreement between Google and AP the terms of which have not been disclosed.

The Belgian dispute is more serious, because Google has already agreed to honor the rest of the Belgian court's order, and is no longer digesting news from three French-language Belgian newspapers at its two Belgian news sites.  And in a similar law suit brought by Agence France-Press in the Washington D.C. District Court, AFP is seeking $17.5 million in damages for copyright damages; Google contends instead that its news snippets fall under the fair use doctrine. 

How much use is "fair use" when it comes to Web-based content?

That's a question that I expected would receive more attention in the blogosphere when Google announced last month that it had reached a deal with the Associated Press that would permit it to continue to link to AP stories at the Google Website — for a price. Every story I recall reading focused fairly narrowly on the specific deal, or at most on the economics of the relationships between major aggregators and major content producers. But in fact, the rights at issue relate to every Website in the world that provides more than a simple link to copyrighted content hosted on another Website.

As a first proposition, any part of a creative work (whether literary, musical or otherwise) that is large enough to be an identifiable part of that work (as compared to a few words or notes that could randomly appear in many works) becomes protected by copyright at the moment of creation. Unless copyright ownership is voluntarily surrendered (i.e., the work is placed in the public domain) in a work, or it is placed under a ">Creative Commons license that voluntarily limits that protection, no part of that work may be reproduced without the consent of the copyright owner.

Updated 9/19/06:  Ah, my good friends the Rambus daytraders have discovered the fact that I have filed another Amicus Brief and (better yet) that I now have a blog where they can leave public comments.  Those who are not members of this community will find their comments below amusing, as they may RMBS and (Another) Dark Side of the Internet, which will help to place them in context

Today is the deadline for filing amicus curiae (friend of the court) briefs and other forms of input with the Federal Trade Commission, as it considers what the punishment of Rambus, Inc. should be for having engaged in "an anticompetitive 'hold up' of the computer memory industry [that]... contributed significantly to Rambus’s acquisition of monopoly power in the four relevant markets."  The FTC made that announcement on August 2, and also announced that it would accept briefs from interested industry participants and others, as well as from Rambus and the FTC prosecuting team.

I've submitted three amicus curiae briefs over the past several years (with the Federal Circuit, Supreme Court, and FTC), on a pro bono basis, in relation to this investigation as well as in connection with the litigation between Rambus and Infineon, on behalf of a large group of standard setting organizations that collectively represent many thousands of corporate, government, university and non-profit members, and was encouraged to provide input in response to this invitation by the FTC as well. 

Below are the "Issue Urged" and "Summary of Argument" from the brief, which will give you an idea of why the Rambus litigation is so important, and why it's equally important that the remedies that the FTC levies send a clear message that, when it comes to abusing the standard setting process, "crime does not pay."  If you'd like to read the whole brief, you can find it in PDF form here.

ISSUE URGED

The remedy levied by the Commission against Rambus must send a clear message to that company, as well as to all that participate in the standard setting process, that the consequences of such bad-faith conduct, if discovered, will significantly exceed the potential gains of engaging in such practices. To fail to include a significant punitive element in the remedies assessed by the Commission would dangerously undermine the standard setting process, to the detriment of society and the national interest.

Microsoft has just posted the text of a new patent "promise not to assert " at its Website, and pledges that it will honor that promise with respect to 35 listed Web Services standards. The promise is similar in most substantive respects to the covenant not to assert patents that it issued last year with respect to its Office 2003 XML Reference Schema, with two important improvements intended to make it more clearly compatible with open source licensing. Those changes are to clarify that the promise not to assert any relevant patents extends to everyone in the distribution chain of a product, from the original vendor through to the end user, and to clarify that the promise covers a partial as well as a full implementation of a standard.

I learned about the new covenant from Microsoft yesterday, which provided me an advance copy of the covenant and the FAQ that accompanies it and an opportunity to ask questions about what it is intended to accomplish. I did have a few requests for clarifications that I'll incorporate below which may resolve some of the questions that might occur to you as well.

Of course, Microsoft (along with IBM and BEA) proposed most, if not all, of these standards to begin with, but I am still impressed with the new covenant, and am pleased to see that Microsoft is expanding its use of what I consider to be a highly desirable tool for facilitating the implementation of open standards, in particular where those standards are of interest to the open source community.