Friday, June 1, 2012

Nokia's promise not to assert patents against Linux is irrelevant in the Mosaid context

This is a near-simultaneous follow-up to my initial reaction to Google's EU antitrust complaint against Microsoft and Nokia over their alleged collusion with a non-practicing entity, Mosaid. Google asks the European Commission to look into something the ITC dismissed three times. Diversion is not a defense, however./p>

According to this media report, "Google alleges MOSAID is reneging on a commitment that Nokia made in a 2005 regulatory filing when the company pledged not to enforce patents against software relying on the Linux Kernel".

I would like to comment on this because I remember the May 2005 pledge and, particularly, the political context in which it was made. Nokia's Linux-related patent pledge was made ahead of a key vote in the European Parliament on a proposed European directive on the patentability of computer-implemented inventions, known as the "software patents directive". I ran a campaign against that bill. It was indeed thrown out, though the fact of the matter is that software patents continued to be granted in Europe in large numbers and are now enforced on a daily basis. I see it in the courts here all the time.

At the time, every large tech company wanted the bill to go through. Even Google didn't oppose software patents but merely wanted EU lawmakers to grant an interoperability privilege so Google wouldn't have to worry about possibly infringing Adobe's patents when indexing PDF documents (that's the example Google mentioned at the time).

The movement opposing software patents largely consisted of open source activists, at least in terms of those who actually went to Brussels, Strasbourg and other European cities to lobby politicians. Also, Linus Torvalds and Alan Cox wrote an open letter to all MEPs (Members of the European Parliament) ahead of the chamber's first-reading vote in 2003. Far-left and Green politicians had a lot of sympathy for the open source movement, while politicians from the center-left to the center-right wanted the decision on software patents to be based on economic considerations rather than open source philosophy and ideology.

In order to counter claims that software patents are a natural enemy of open source software, some companies made pledges not to assert some or all of their patents against certain open source technologies (particularly Linux). A secondary consideration was that these companies also wanted to curry favor with the open source community. I criticized them all for this. In particular, I always pointed out that those pledges had major loopholes. My criticism was quoted in many media and I authored an opinion piece for Slashdot. To me it was always clear that those pledges were political instruments of limited legal value.

The European Commission had made the proposal for the CII directive and backed it. At the time, the Commission probably also welcomed those pledges in order to weaken the open source movement's resistance against the bill.

In January 2005, IBM made the first pledge of this kind. Sun Microsystems made one, too. And so did Nokia in May 2005. Here's a Slashdot story on Nokia's pledge, and an archived version of an official Nokia webpage that contains the full text.

When reading the actual text, it's crystal clear that Nokia's promise was limited to the "Linux kernel", as opposed to something like Android. While Android uses the Linux kernel, it's not Linux, and in particular, it's not published under the same license, the GPL. Nokia's pledge, however, related to "any version of the Linux kernel which (i) is released as "stable version", (ii) is licensed under the "GNU GENERAL PUBLIC LICENSE Version 2, June 1991 for the Linux operating system" and (iii) has been published by the Organization, Inc on its Linux Kernel Archive website at". This clearly doesn't include Android. Android itself is published under the Apache Software License, which is inherently incompatible with the GPL. Parts of Android (such as the Android Market/Google Play, Google Maps, Google Mail, Google Talk etc. clients) are made available under proprietary, closed-source software licenses, which are also incompatible with the GPL.

Google won't be able to fool the European Commission about this because it has a lot of in-house expertise concerning open source licenses. The European Commission even created an open source license of its own (the EUPL), and it has dealt with open source licensing questions in certain competition contexts such as Oracle's acquisition of MySQL (a GPL-licensed database) as part of Sun Microsystems.

I don't know which patents Mosaid acquired from Nokia. There are 2,000 patents, and apparently 1,200 of them are standard-essential. It's possible that not even one of those 2,000 patents reads on the Linux kernel (as opposed to reading on Android).

Nokia's pledge clearly didn't rule out the possibility of patent transfers, but it didn't say that the pledge would apply post-sale. Pledges that mention transfers at all are hard to find. Even the world's largest Linux company, Red Hat, made a patent pledge that doesn't address sales or transfers of Red Hat's patents. One of a very few exceptions to the rule that pledges don't survive transfers is Microsoft's February 2012 statement on standard-essential patents ("Microsoft will not transfer those standard essential patents to any other firm unless that firm agrees to adhere to the points outlined above"). That kind of language was missing from all those open source patent pledges including Nokia's.

Back in 2005, when I criticized all those pledges, there was no company that joined the chorus. If some non-governmental organizations, companies and individuals had spoken out, we could have jointly demanded that IBM, Sun and Nokia make further-reaching pledges. But Google, like most companies, decided not to take action. As I explained above, Google was still a pro-software-patent company at the time. Google can't rewrite history seven years later. If Google ever relied on Nokia's pledge (which is highly unlikely anyway, but let's assume it for the sake of the argument), it was sufficiently sophisticated to understand its limitations.

Another limitation of Nokia's 2005 patent pledge was that it covered only "patents and patent applications with a priority date of 31 December 2005 or earlier".

So far, Google hasn't named even one example of a Nokia patent with a priority date of 12/31/2005 or earlier being asserted against the Linux kernel (as opposed to Android). There may not even be such an example, and if this happened post-sale, the pledge was clearly never meant to apply. Given that I realized it from the outset, Google could easily figure it out as well. At any rate, if there are any assertions against the Linux kernel (as opposed to Android), I'm sure the kernel developers would want to know. Google should make the information public so that the kernel developers can look for ways to work around the asserted patents. Since Google is probably the largest-scale Linux exploiter in the world (on its server farm and through Android), it actually owes the Linux kernel developer community a lot more than this.

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