Have you discovered The Alexandria Project?
Last Thursday the European Commission took a major step forward on the “openness” scale. The occasion was the release of a new version of the European Interoperability Framework (EIF) which definitively endorsed the use of open source friendly standards when providing “public services” within the EU. This result was rightly hailed by open source advocates like Open Forum Europe.
But the EC took two steps backward in every other way as it revised its definition of "open standards," presumably reflecting IT industry efforts (e.g., by the Business Software Alliance) to preserve the value of software patents.
In this blog entry, I’ll review the seven-year long process under which the “European Interoperability Framework” (EIF) first set a global high water mark for liberalizing the definition of open standards, and then retreated from that position.
Have you discovered The Alexandria Project?
Ever since the proposed acquisition of Novell by Attachmate Corporation there has been much curiosity, but almost no information, relating to the other major piece of the deal: the acquisition of 882 patents by a consortium led by Microsoft for $450 million. There are three main areas of undisclosed information that are piquing peoples’ interest, and in this bog entry I’ll go through each of them.
Have you discovered The Alexandria Project?
Two days have now passed since Novell announced the high-level terms of its proposed sale, and so far the press has not been able to prize any additional details out of the parties involved. As a result, speculation is rife on several key points, and especially with respect to the 822 patents that Novell proposes to sell to a consortium of companies, only one of which has been disclosed: Microsoft.
Given this dearth of information and the fact that I’ve been a transactional lawyer for over 30 years, I’ll use this blog entry to lay out those things that can be known, those that can’t (yet) be known, and when we can expect additional disclosures. (This is a long blog post, so if you have a short attention span and only care about Linux, that bit is at the end.)
Have you discovered The Alexandria Project?
If you’re interested in the intersection of technology, government, standards and open source software, you really want to be paying close attention to Europe these days. That’s because the EU is where all of the really interesting, high-level IT policy action is.
Yes, there are some important things happening in China, but Chinese policy is very narrowly targeted towards achieving industry-specific economic goals. And yes, isolated initiatives and skirmishes pop up in the U.S. from time to time, much to the bewilderment of most legislators. But it’s in the EU where you find by far and away the greatest sophistication on the part of policy makers, and the most extensive grass-roots engagement by citizen groups.
The reason is not surprising. Unlike those other two huge markets – the U.S. and China – the EU is of course made up of many independent states, and it has taken decades of multidimensional, creative effort to incentivize, cajole and nudge those states into a more cohesive and forceful economic whole.
With that by way of background, let’s take a look at a kerfuffle that emerged yesterday when two lobbying associations reacted to a pre-release copy of the latest version of that extremely interesting and much battered document called the European Interoperability Framework (EIF), version 2.0.
Have you discovered The Alexandria Project?
As most of the technology world knows by now, Oracle has brought a suit for patent infringement against Google, asserting that the Java elements incorporated into Google’s Android operating system infringe patents that Oracle acquired when it took over Sun Microsystems. The basic facts are here, and the complaint can be found here. What no one yet knows for sure yet is why?
My crystal ball isn’t any clearer than the next guy’s but here are a few thoughts to consider.
Have you discovered The Alexandria Project?
“ORDERED that SCO's Renewed Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial is DENIED.” So ends the ruling of District Judge Ted Stewart. And so also, perhaps, ends the seemingly endless quest of SCO to tax or kill Linux.
Given SCO’s well-demonstrated tenacity and unwillingness to face reality, it may seem unwise to assume we have indeed seen the end of the road. But, as with the Black Knight in Monty Python and the Holy Grail, once someone who has lost touch with reality loses their last limb, it’s easy to just walk away and leave them alone with their delusions. Presumably, that’s what SCO’s trustee in bankruptcy will now do, forbidding any funds to be spent pursuing SCO’s suit against IBM, or anyone else.
Assuming that’s the case, this isn’t a bad time to ask the question, “What did it all mean?”
Have you discovered the Alexandria Project?
A long running case of great significance to the legal underpinnings of free and open source/open source software (F/OSS) has just settled on terms favorable to the F/OSS developer. The settlement follows a recent ruling by a U.S. Federal District Court judge that affirmed several key rights of F/OSS developers under existing law.
That case is Jacobsen v. Katzer, and the settlement documents were filed in court just after 9:00 AM this morning. Links to each of them can be found later in this blog entry. The brief background of the case, the legal issues at stake, and the settlement details are as follows.
Think of the words "standards war," and unless you're a standards wonk like m...oh, never mind...you're likely to think of the battle between the Betamax and VHS video tape formats. That's because videos are consumer products that just about everyone uses, and therefore the bloodshed in that standards war was not only shed in public view, but the some of the blood that was shed was shed by the public (i.e., those that bought video players supporting Betamax, the losing, but arguably superior, format). Fast forward (pun intended) to the present, and the trademarks "HD DVD and "Blu-ray" may ring a bell - and that's no coincidence.
Why? Because different industries have different business models and strategies that involve standards, and these often perpetuate over time - decades, in this case. In the case of the consumer electronics sector, that culture has too often been one of a patent-based, winner take all effort to cash in big time while your competitors take it on the chin. And it's not just media formats, either. As I noted in a blog entry a few weeks ago, we're seeing the same type of behavior in eBook readers. Since there's only one market, and the market demands one format to win in the end, that means that the camp that owns the bundle of patents underlying the winning format standard wins a bonanza.
Why? because the losers must pay through the nose for the license rights to build the players that implement the format standard that wins. The winners, on the other time win twice: once, by receiving the royalties, and again, because their own players have a lower cost to produce, because they don't have to pay royalties to themselves.
So guess what? Here we go again, but with a bit of a twist this time.
Yesterday a very small company won a very big victory against a very large software vendor. The small company is i4i, a Canadian company that claimed that the large company had not infringed its patent accidentally, but knowingly and willfully, after engaging in discussions relating to the very same technology in question. For the small company, the functionality in question represented its main product, so when the big company bundled the same technology for free in its own product, i4i's business was gutted. If you've been following the story already, you know that the big company is Microsoft.
Yesterday's big victory was the affirmation by an appellate court of the trial court's finding of willful infringement. Under the ruling on appeal, Microsoft had been required to remove its infringing code within 60 days, and also pay i4i $290 million in damages due to the lost sales and other harm it had caused. Here are my thoughts on what just happened, and what's likely to happen next.
According to Reuters, one more thread in the long-running saga of Rambus and the JEDEC SDRAM standards abuse saga appears to be reaching an end. Specifically, the wire service reports:
European regulators are set to accept a proposal by Rambus Inc to cut royalties to settle antitrust charges, according to a person familiar with the situation,... Under the terms of the settlement,...Rambus will not be fined and will not be found liable for any wrongdoing, the source said....Rambus will also offer some of its older products for free as part of the settlement.
The story goes on to state that the regulators are expected to announce next Wednesday that they will accept without change the terms offered last June by Rambus. If this is confirmed, Rambus will agree to cap its royalties at 1.5 percent to 2.65 percent per unit for identified types of SDR memory controllers and memory types for five years, beginning in 2010.
If the settlement is announced as anticipated, U.S. regulators may wonder whether their brethren across the pond are better poker players than they are.