06.15.10

Debate Rages on Regarding the Open Invention Network (OIN)

Posted in Europe, IBM, OIN, Patents, Standard at 3:38 am by Dr. Roy Schestowitz

Summary: Groklaw defends IBM and OIN very stubbornly (as well other initiatives that help legitimise software patents rather than immediately eradicate them), but Florian Müller from Germany disagrees with this approach

A COUPLE of days ago, Pamela Jones (PJ), the editor of Groklaw, started what we consider to be an unfair attack. PJ shoots the messenger (Florian Müller) once again in order to defend IBM/OIN (Groklaw always defends IBM, which is a software patents proponent and a monopolist for several decades). To quote the criticism:

Mueller calls OIN a scam
02:42AM June 06/13/10, 2010
Florian “Floyd” Mueller of Fosspatents has found a new windmill to tilt at — the Open Invention Network.

“There’s absolutely no evidence it has ever helped any FOSS company” he charges at his blog.

[PJ: As usual, Mueller is totally wrong. Blankenhorn says Mueller's nickname is "Floyd". It should be Florian "FUD" Mueller. OIN has helped every FOSS company by intercepting and buying up the patents Microsoft tried to shop around so that third parties could sue Linux. Where was he when that happened? Microsoft tried to auction off some patents that they claimed relate to Linux. Patent trolls could have bought them. Instead Open Invention Network (OIN) got them. And OIN also helped TomTom, who instead of paying Microsoft to use FAT, instead removed it. Here's one bit of what Jim Zemlin of the Linux Foundation said at the time about the case, and notice the credit given to OIN: "There is another silver lining here. We read the outcome of this case as a testament to the power of a concerted and well-coordinated effort by the Linux industry and organizations such as the Open Invention Network, the SFLC and the Linux Foundation. This was not merely a typical David vs. Goliath story. This time David aligned itself with the multiple slingshots of the Linux community. Microsoft relented as soon as TomTom showed they were aligned with that community and ready to fight. The system is working." So if Blankenhorn is thinking that Mueller is a FOSS person, he's mistaken. He's not even an Open Source person, I'd opine. If he were one, he's very much out of the loop, judging from his ignorance of the role OIN is playing. As for Blankenhorn's suggestion that Mueller should carry Richard Stallman's torch, that is laughable as well as creepy.] – Dana Blankenhorn

Dana Blankenhorn wrote about this little Groklaw controversy in a new ZDnet blog post yesterday. “He’s a character with his special sense of humor,” told us Müller, “and I try not to take things personal the way he writes them.”

Blankenhorn is not a proponent of Free software and neither is Groklaw (which spends a lot of time defending Apple, posting links about its products, and even Fog Computing sometimes). Blankenhorn ought to actually start using GNU/Linux in order to understand it. As mentioned in the comments and in here or here, “does the guy even know what he’s writing about? FreeBSD among “Linux outfits”? jeez.”

“IBM has an immense library of software patents, which give it a place at the table of every open source debate.”
      –Dana Blankenhorn Blankenhorn responds to Groklaw’s outburst and he correctly states: “When idealists are attacked from inside their party, it’s useful to note where the criticism is coming from, and why. Groklaw, for instance, has to my knowledge never set itself in opposition to IBM in any great open source debate. They are a player in all debates, but their word is never definitive.

“IBM has an immense library of software patents, which give it a place at the table of every open source debate. Through the Open Invention Network, it has created a commons with other open source players. But it is, as Mueller notes, a closed system, a poker table where your ante is your patent portfolio.”

We asked Müller to respond for quoting. Regarding the allegations posted in Groklaw, Müller sent us the following statement which he considers fine for quoting verbatim:

My nickname is neither “Floyd” (Dana confuses me intentionally with another person: http://floydmueller.com) nor “FUD”. Of course there are issues, including in the OIN context, where I personally have fears, uncertainty and doubts, and there are reasons for it. That does not make “FUD” my agenda. Instead, my agenda with the FOSS Patents blog is to provide information that (i) helps FOSS developers, distributors and users identify, avoid and deal with patent-related problems and (ii) puts a spotlight on ulterior motives
and hypocrisy on the part of false friends of Free and Open Source Software. A long time ago I thought Groklaw shared the first goal. But by writing that IBM is free to sue the pants off TurboHercules, PJ has unfortunately shown that her agenda is different.

Throughout all those years PJ has never criticized IBM for anything other than disagreeing with that company on software patents. By contrast, on my blog and in my speeches, including recently such as at LinuxTag, I have meanwhile criticized something about every major player in the industry who has something to do with FOSS and patents. Not sparing any company is also the TechRights approach as far as I can see. But it’s not the way Groklaw operates.

I don’t claim to be a community leader. It’s Dana Blankenhorn’s journalistic freedom to portray me as a future community leader but after the article came out I told him in an email that I’m focused on patent issues and not at all aspiring to be what he thinks.

The only source PJ has for her theory of OIN having helped TomTom (although TomTom only became a non-paying licensee like dozens of others) is the Linux Foundation. Jim Zemlin is His Master’s Voice when IBM, the Linux Foundation’s largest sponsor, is involved, and IBM is a driving force behind the OIN as well.

If the OIN could solve the problem,
- why did TomTom have to agree to rewrite its software over the next two years to work around Microsoft’s patents?
- why did TomTom have to agree to pay royalties to Microsoft?
- why is Apple suing HTC?
- why is HTC paying patent royalties to Microsoft?
- why can’t the OIN use its patents to obtain legally binding statements of
non-assertion from key MPEG LA members (especially given that MPEG LA recently announced the possible creation of a WebM-related patent pool and considering that Google is an OIN licensee just like TomTom)? And one could find countless other examples that indicate that the OIN isn’t the answer.

Also, PJ asked where I was when the OIN bought up patents that Microsoft auctioned off. Under the subhead “So what is the OIN good for”, I clearly mention OIN’s patent-buying activity and provide my view on it. I’ve copied
the passage here:

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.

I didn’t say the trolls should have those patents. Not at all. But on my harmfulness ranking of ways to use software patents, trolls only rank second and malicious strategic holders rank first.

I wonder why PJ thinks it’s a good idea that the OIN has completely arbitrary definition of the “Linux System” (meaning the software that is protected) in place, without any objective criteria such as “software shipped with major GNU/Linux distributions”…

Finally, I would like to stress that I have a lot of hope for the Defensive Patent License (DPL), which has not yet been published but on which several media (though not Groklaw) have reported. When the DPL is finally available, and provided that it is as good as I hope it will be, it will be interesting to see how the OIN’s backers respond to it.

Hope this helps — please let me know if there’s any aspect that’s important to you but has not yet been addressed by me.

Müller then proceeded to claiming that ECIS is hypocritical and that “there are three companies who are members of both organizations [OFE and ECIS]: IBM, Oracle, Red Hat.” In another post he noted: “On Thursday and Friday of last week, I saw hypocrisy of the worst kind: two IBM vice presidents preaching open standards values to EU decision-makers and FOSS community members instead of practicing them at their own company, which would really need that kind of lecturing.”

“On Thursday and Friday of last week, I saw hypocrisy of the worst kind: two IBM vice presidents preaching open standards values to EU decision-makers and FOSS community members instead of practicing them at their own company, which would really need that kind of lecturing.”
      –Florian Müller Our criticism of IBM’s approach toward software patents goes about a year back (the attitude changed after FFII had helped show that IBM was lobbying for software patents). There are certain questions IBM ought to answer, but IBM is very discreet and it rarely speaks to the public about this taboo subject. It mostly speaks using press releases. Müller’s new posts also contain a word about Google’s “promise” not sue (not against Free/open source projects anyway). It’s similar to IBM’s strategy and we have criticised Google for it [1, 2]. We oppose certain behaviours, not certain brands.

Groklaw does not always stand up for software freedom. Florian Müller does not stand up for software freedom either, as his actions in Munich show quite clearly, but he did work hard to keep software patents out of Europe and for that he deserves credit. We ought to look at IBM sceptically as well as at others. We should view groups of people (companies) not just based on brands, but based on policy/behaviour. We should utilise a judgment/meter which is based on a moral compass, not a brand compass.

There might be a difference in perspective because here in Europe we generally don’t have software patents (that are formally legitimate). In the US they need to resort to civil disobedience and challenge existing laws which are lobbied for by companies like IBM which built vast portfolios of software patents with parasites like Marshall Phelps, who later did the same for Microsoft.

I personally view OIN as a temporary fix. It can be very effective sometimes [1, 2, 3, 4, 5, 6], but it’s not a permanent solution. I know other people who have been feeling the same way for several years. The real solution is abolition of software patents. OIN is M.A.D., abolition is disarmament.

Florian Müller comes from Europe (where we don’t have software patents), so the difference in perspectives wrt Groklaw ought to make sense. Maybe it’s the geographical divide and diversity of opinions is always a good thing. Without it, no better solutions can ever be found. It’s like evolution. Techrights sidles with neither side in this argument and this post hopefully presented both sides fairly, leaving readers to draw their own conclusions. █

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