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A Glimpse Back at Red Hat’s and Novell’s Stance on Software Patents in 2005

Posted in Europe, GNU/Linux, IBM, Novell, Patents, Red Hat at 2:38 am by Dr. Roy Schestowitz

Piggy bank OIN

Summary: In hindsight, it is claimed that Red Hat too has an ambivalent view on the subject of software patents, at least historically; Novell, as expected, is not against software patents

“Webbink (then Red Hat) [was] in favor of [the European] software patent directive.” We have just learned this from Florian Müller, who is referring to incidents going half a decade back. Could it possibly be true? Let’s look at what we know.

We found the above claim curious if not contradictory because Mark Webbink expressed his opposition to software patents as he was leaving Red Hat a few years later. He made a video on the subject. In many ways, Red Hat follows IBM’s lead and may sometimes inherit the path chosen by IBM, which is of course in favour of software patents. On the subject of software patents at Red Hat we wrote last year:

Here is a video of Mark Webbink speaking about software patents. He doesn’t seem to like them at all.

“Concerning Mark Webbink (then with Red Hat, now involved with SFLC and other organizations), a couple of web pages still contain the text of a post I published on my old “NoLobbyistsAsSuch” blog in 2006,” wrote Florian. Here is the text (no longer at its original address, so we wish to preserve it):

Evidence for Mark Webbink’s pro-patent directive lobbying on July 5, 2005

In my previous blog article, I mentioned the fact that Red Hat’s deputy general counsel, Mark Webbink, lobbied in the European Parliament on July 5, 2005 (the day before the EP’s decisive vote to reject the software patent bill) to keep the software patent directive alive.

I had not anticipated the kind of Internet debate that this statement would trigger, including some insulting emails that were sent to me, and least of all I would have expected Mark Webbink to call into question the “veracity of [my] statements”, which is what he did in the discussion below this LWN.net article. He knows exactly what he did.

The word “motivations” also appears in that posting. It’s really simple: on the occasion of a patent suit having been filed against Red Hat, I thought it was time to tell the truth. Especially the free and open source software (FOSS) community should know where certain key players stand. That will better enable people to take a critical perspective on such initiatives as the OSDL Patent Commons.

Contrary to what Mark Webbink claims, my related statements are not “unverifiable”. What he did on July 5, 2005 is a well-documented fact, and here’s some evidence:

From: [name and address of adviser to Michel Rocard MEP deleted]
Sent: Monday, October 31, 2005 2:53 AM
To: Florian Mueller
Cc: europarl-help@ffii.org
Subject: Re: Economist article — coordinated response needed

Yes. The day before the vote, as I had been considered by them as somewhat connected to Mr Rocard 8^) , I have been quite heavily lobbied by a group comprising Mrs Thornby-Nielsen (Sun), Mrs Moll (Google), Mr Webbink (RedHat) and Mr Cox (IBM). All four had basically the same concerns

I have removed parts of the email and in particular the name of the author, further to his request. He would prefer to stay in the background, like many political advisers do. But europarl-help@ffii.org is a key mailing list of European anti-software patent activists, and dozens of people received that email directly. No one will seriously question its authenticity.

And here’s an important excerpt from a follow-up email:

From: [name and address of adviser to Michel Rocard MEP deleted]
Sent: Monday, October 31, 2005 1:44 PM
To: Florian Mueller
Cc: europarl-help@ffii.org
Subject: Re: Economist article — coordinated response needed

> They were against the rejection deal, right? I know that Mark W. and
> Charlotte T.-N. didn’t want rejection.

It seemed so to me. All of them. Basically, it seemed to me they were not likely to have no sotware patents at all. The interpretation I gave Mr Webbink was that it is not culturally acceptable, for most people that come from the legal and patent world, to reject a system from which one can make some money…
I believe the above should eliminate all reasonable doubt about what happened that day. While the FFII and I were asking everyone we knew in the European Parliament to reject the proposed software patent directive, Red Hat’s Mark Webbink, along with representatives of IBM, Sun and Google, pushed in the opposite direction.

So what did he really want to achieve? Someone pointed me to an article Mark Webbink wrote and which in its paragraph #20 refers to the EU software patent directive. He asks for a definition of the term “technical contribution” (a key term in patent law) that “will eliminate the vast majority of business method patents and will restore a substantial non-obviousness test to software patents”. If you read that carefully, it means he accepts software patents per se. He’d just like to raise the bar a little bit, and the FFII and I and all others who know how substantive patent law is applied in practice can tell you that defining “technical contribution” properly would not be a sufficient measure. It would just have the desired effect as part of a coherent framework of patentability criteria. Otherwise it’s like a bucket has five holes and you close one: all of the water will still go through the other holes.

In the same article, and in the Red Hat/Sun position paper that Mark Webbink published again on LWN.net, a lot of emphasis is put on an interoperability privilege. That, again, means to accept the patentability of software per se, but to demand a carve-out for certain purposes. To the FFII and myself, interoperability was not even a secondary priority. We focused on the definition of what is patentable and what is not. If software is not patentable at all, there’s no pressing need for an interoperability exception as far as we’re concerned. Interoperability was exactly the area in which the pro-software patent forces were most wiling to make a concession if it allowed them to win the wider battle.

Finally, I’d like to reiterate what I said in my previous post: What Mark Webbink did behind the scenes is not necessarily Red Hat’s position as a company, even though Red Hat has entrusted him with patent lobbying. There are many people at Red Hat who clearly oppose software patents, and who opposed the EU software patent directive, most of all Alan Cox.

People can judge the claims above knowing that they came from someone who pushed for abolition.

We previously wrote about IBM as a key player in OIN, but Florian names six key companies, Novell and Red Hat included. “I’ll also mention some things concerning the positions of its backers on software patents, such as what Novell told EU politicians in 2004,” Florian wrote. Yesterday he posted his analysis of OIN, which is interesting.

Only six companies call the shots

The OIN’s name starts with an utterly misleading term: “open”.

In reality, the organization is owned and run by a closed circle of six companies, some of whom have a terrible background concerning software patents:

* IBM (the world’s largest patent holder and one of the most ruthless ones, recently in the news for betraying its own “patent pledge” by infringement assertions made against open-source startup TurboHercules)

* Philips (a company that once benefited from the temporary abolition of patents in its country but later lobbied extremely aggressively for software patents, left the World Wide Web Consortium because of the latter’s royalty-free patent policy, and threatened politicians with killing software development jobs in Europe if they weren’t going to allow software patents, even though patents are always related to a target market in which they’re valid and 100% independent from where in the world the patented invention is made)

* NEC (a large patent holder)

* Sony (a large patent holder)

* Novell (which never supported any serious push against software patents and instead told EU officials in 2004 that it liked software patents a lot except that a proposed EU law on them appeared to limit “customer choice” a bit too much)

* Red Hat (which lobbied to keep the aforementioned EU bill alive when we had already formed a majority for its rejection, and which partners with IBM on a number of initiatives that appear to protect FOSS but are either ineffectual or even potentially harmful)


So what is the OIN good for?

The fact of the matter is that today, almost five years after its foundation, the OIN still hasn’t proven its ability to help any Linux (or other FOSS) company in any meaningful way. Totally unsubstantiated and illogical claims by propagandists aren’t a substitute for a single convincing success story. That success story would have to consist in some company potentially hostile to open source (and with a dangerous patent arsenal) accepting the OIN’s licensing terms. That hasn’t happened and I have serious doubt that it ever will.

The OIN continues to buy patents at auctions that might otherwise be acquired by regular trolls. At first sight, that may sound good. But given the intransparent and arbitrary structure of the OIN, it’s not clear whether that’s actually the lesser or the greater evil than a conventional troll. In the end, the OIN is under the control of those six companies who could decide to use some of those patents against competitors, including FOSS competitors. By controlling the definition of what the OIN calls the “Linux System”, they can always ensure that their competitors don’t benefit from it, even if they were or became OIN licensees.

Buying those patents at auctions is really expensive. So far the OIN has spent hundreds of millions of dollars. Given the way businesses operate, that’s not the amount of money that one would spend unselfishly. Instead, that level of investment, intransparency and unbalanced rights suggests ulterior motives, if not a long-term hidden agenda.

The analysis above leaves out players such as Google and Oracle (also in OIN). In the mean time, more patent pools are being created for Linux and there are also entities such as RPX. None of these entities strives to end software patents (certainly not Peer-To-Patent, either); they are only aggregating and/or endorsing them. As Carlo Piana put it last week, “the *only* solution is abolition NOW.”

The bottom line is that Red Hat could do more to end software patents as OIN is not enough. OIN is a symptom of a problematic framework and it’s that framework which needs to be tackled.

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