Wednesday, November 17, 2010

Torn between a lobby and a FRAND

Ahead of a European Commission and European Patent Office conference on intellectual property rights and standardization taking place in Brussels on Monday (22 November 2010), some of the most vocal advocates of openness have determined that FRAND is not a foe of "free" and that both concepts are legitimate in their own right.

I don't just mean the actual business practices of the companies behind the royalty-free/restriction-free lobby. Meanwhile we can even hear it straight from the horse's mouth:

Oracle provides TCK [the official testing kit for compliance with the Java standard] licenses under fair, reasonable, and non-discriminatory terms consistent with its obligations under the JSPA [the Java standard-setting agreement].

Don Deutsch, [Oracle Corp.] Vice President of Standards and Architecture

The above quote is from a statement with which Oracle -- a driving force behind ECIS and OpenForum Europe and an "open standards" lobbying partner of the FSFE -- just responded to the Apache Software Foundation (ASF), one of the two or three most important open source organizations in the world.

The context: compatibility of FRAND with FOSS; field-of-use restrictions

The statement quoted above speaks for itself, but the context makes it even more relevant: the board of the ASF had complained that Oracle "imposes additional terms and conditions [on Java licensees] that are not compatible with open source or Free software licenses." The ASF contends that "Oracle is violating their contractual obligation as set forth under the rules of the JCP [the Java standard-setting process]". It reiterated this view in a succinct reply to Oracle's FRAND statement: "The ball is in your court. Honor the agreement."

The open letter to which the word "agreement" points is more than three years old. At the time, Java belonged to Sun; Oracle acquired Sun last January. Therefore, the letter was directed to Sun, and it stated the following:

[...] The JCK license Sun is offering imposes IP rights restrictions through limits on the "field of use" available to users of our software.

These restrictions are totally unacceptable to us. As I explain below, these restrictions are contrary to the terms of the Java Specification Participation Agreement (JSPA) - the governing rules of the JCP [Java standard-setting process] - to which Sun is contractually bound to comply as a signatory. The ASF has a proud history of support for open software ecosystems in which commercial software can flourish.

However, Sun's JCK license protects portions of Sun's commercial Java business at the expense of ASF's open software. It prevents our users from using Apache software in certain fields of use.

[...] limitations on field of use for our users is contrary to the basic principles of open source licensing, and therefore these limitations would prevent distribution under any open source license, including our own. [...]

There you have the argument I addressed in this recent post ("FOSS can implemented patented standards"). The FSFE also listed the Apache license among FOSS licenses that it falsely claims to be incompatible with FRAND-based licensing. (You can read the truth about patent licensing under the Apache license here).

Oracle contradicts itself and its lobbying fronts ECIS, OpenForum Europe and FSFE

It appears to be a common pattern that open source foundations don't want to become "frandations", so they claim legal incompatibility even though their problem is a philosophical one. But what's really interesting is that Oracle uses two contradictory definitions of "open standards":

In front of policy-makers, Oracle (interestingly, Don Deutsch himself) gives talks such as this recent one in Brussels about all the good that open standards do. Oracle co-authors, finances and lends its name to statements such as this one that argue against FRAND-based licensing because it would allegedly "exclude a broad segment of the industry -- mostly open source software developers -- from implementing that specification in their products." ECIS, which issued that one, is run by Thomas Vinje, Oracle's outside counsel on EU antitrust matters. Oracle is one of its most influential members. Similarly, Oracle is a member of the OpenForum Europe (where Don Deutsch gave that talk), and it uses the FSFE for its purposes.

But when one of the most important open source organizations tells Oracle that FRAND terms "are not compatible with open source or Free software licenses", the answer is just that all Apache will get is FRAND -- take it or leave it. The Register also interprets it as saying "this is Oracle's stance on the matter and it's not changing."

As Apache's aforementioned succinct reply shows, the organization insists that this attitude constitutes a breach of the Java standard-setting agreement and, most of all, its section 5.C.III. You can find that agreement here, and this is a wording the ASF interprets in its favor:

"[...] the [licensor] agrees not to impose any contractual condition or covenant that would limit or restrict the right of any licensee to create or distribute such Independent Implementations."

Apparently the ASF believes that this means its open source implementation of Java (the Apache Harmony project) must not be restricted. However, as I've already shown, Oracle says that FRAND licensing is "consistent with its obligations under the [standard-setting agreement]."

IBM -- the largest member of ECIS and OFE and financier of the FSF/FSFE -- supports Oracle

So Oracle believes FOSS can be reconciled with FRAND. And guess where IBM -- the other large company supporting the same European lobbying entities (ECIS, OFE and FSFE) -- stands: firmly on Oracle's side.

For a long time Big Blue supported not only the ASF in general but also its Java implementation, Harmony, in particular. Last month, however, it defected and now supports Oracle's OpenJDK, a GPL-based Java implementation.

IBM's open source VP Bob Sutor wrote on his blog that this switch of allegiance "will help unify open source Java efforts" and that "customers will benefit by having first class Java open standards developed collaboratively and constructively".

The Guardian's technology blog, however, calls this move "as much divisive as unifying."

The decisions and positions taken by those companies completely undermine the efforts of their "open standards" lobbyists in Europe such as IBM's Jochen Friedrich, who advocates extreme positions, and Oracle's Trond Undheim, who (as I mentioned in a recent post) referred to a group of EU officials as "rats" transmitting the "RAND disease" (RAND is synonymous with FRAND).

Upcoming Brussels conference on intellectual property rights and standardization

This endorsement of FRAND's compatibility with open source by Oracle and IBM has interesting implications to the debate taking place in Europe over open standards. Like I said at the beginning, the European Commission and the European Patent Office are going to host next week a conference on "Tensions between intellectual property rights and standardisation: reasons and remedies".

Some of the players I mentioned will speak there. Oracle's friend of FRAND, Don Deutsch, is on a panel on "ex-ante commitments to licensing terms". Thomas Vinje, counsel to Oracle as well as ECIS, will talk about the "certainty of availability and continuity of essential IP rights for licensing". An IBM patent attorney, Nicolas Schifano, is also on that panel. Finally, the FSFE's Karsten Gerloff will give a speech on "open source, freely available software and standardization".

I believe Don Deutsch won't be able to avoid discussing the Java situation. That one is important in and of itself, but it also plays a role in the patent infringement suit Oracle filed against Google and which draws more attention right now than any other patent suit in the industry (although there are so many going on, especially concerning mobile devices).

In its answer to Oracle's complaint, Google references the ASF's criticism and Oracle's obligations under the Java standard-setting agreement to allow independent implementations. Oracle claims seven of its Java patents are infringed by Dalvik, the virtual machine for Google's Android mobile operating system. Dalvik is derived from a part of the Apache Harmony code. So Oracle's denial of a different license has ramifications way beyond the ASF's desire.

The field-of-use restriction Apache complains about relates to mobile devices. Oracle allows independent Java implementations, but it draws a line in the sand where smartphones and tablets are concerned, for commercial reasons. This is a perfect example of a restriction that has nothing to do with royalties. Those who oppose FRAND often try to narrow the issue down to license fees while I advocate a more comprehensive approach.

Political debate and mixed-source reality

The conference "is part of an open dialogue process that the Commission is undertaking with key stakeholders [...] The EPO and the Commission hope to organise further events and meetings on issues relevant to IPR and ICT standards, with the objective of improving transparency and predictability in this crucial field."

While several of the speakers have a propensity for politicizing this topic, the conference program also lists panelists who operate on a day-to-day basis in the mixed-source reality of the IT industry. For instance, SAP is a markedly Linux-friendly vendor of proprietary software and should be able to tell us about how to cross the span. I also see major telecommunications equipment companies on the list. Nokia co-founded the MeeGo project, an open source mobile operating system based on Linux. But Nokia instigated patent litigation against Apple and is having an argument over FRAND licensing. This seems to me a perfect example of a company that cares about open source as well as its intellectual property.

In terms of an additional type of stakeholder that would have been great to have on one of the panels, I wish there were some SMEs (rather than just an association claiming to speak on their behalf) with mixed-source expertise and a complete focus on meeting customer needs by combining the best of both worlds. There are many of them out there.

That said, I really look forward to attending the conference next week and will report on it here (in compliance with applicable house rules, of course).

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