Bonum Certa Men Certa

The Other Side of Red Hat: Pieter Hintjens on AMQP and Patents

Edited and reposted with permission from Pieter

Three monkeys



RED Hat’s patent policy is not new, it dates from some years back, and as far as I recall was drafted by Mark Webbink, responsible for Red Hat’s patent policies, and who I worked with on several occasions.



The news is that Red Hat sought a patent on an extension to an open standard -- AMQP -- that it’s participating in. It was the way this patent was filed, and the matter it covers, that incensed other members of the AMQP working group.

“The news is that Red Hat sought a patent on an extension to an open standard -- AMQP -- that it’s participating in.”I’ll note that at the time Red Hat filed their patent for an XML routing ‘exchange’ -- August 2007 -- they had not yet written software. They were reading the spec and extrapolating into areas that were not covered by AMQP’s patent policy but which would be interesting to patent.

Red Hat has not really explained why they did this. Their rep on the working group has said it was to “test the broken US patent system” and to “defend against a known troll,” but neither of these explanations makes sense.

Further, they told no-one about it. I’d expect that kind of behaviour from some of the working group members, but certainly not from Red Hat.

Why is patenting around an open standard such a crime? Because it is a standard way to ambush the market. You spot an area that is not covered by the IP policy, you patent it, and when customers realize they need to extend into that area, you quash all competition and demand your licenses.

Again, standard operating procedure for many firms. Not for Red Hat.

What makes the situation more spicy is that Red Hat helped draft the AMQP IP policies. So they knew the loopholes.

“What makes the situation more spicy is that Red Hat helped draft the AMQP IP policies.”Some people have said that if Red Hat invented this, they have the right to patent it. To answer that: the AMQP spec which Red Hat read in 2007 was largely my invention: I dreamed up exchanges and bindings, hammered them into shape with my team and the guys at JPMorganChase, explained how they should work, explained how to extend AMQP with custom exchanges, wrote thousands of pages of design notes, RFCs, and diagrams that finally condensed -- by my hand and over three years -- into the AMQP spec that Red Hat read in 2007.

Yet it’s Red Hat that claims a patent on a trivial and obvious extension to the spec, in an area where it is clear that people will need to develop.

That is the news: a hypocritical move by a firm that has a lot more to lose than others by filing software patents around an open standard.

People have also said that Red Hat will never sue open source projects. This is not the point. We’ve seen some outright lies from Red Hat about AMQP -- including one press release where they claimed to have invented it -- and we know that they are desperate to sell MRG, their AMQP package. Patents are mostly used for that: FUD, to scare potential clients away from the competition. It is very rare to see real litigation.

People have said this is a defensive patent. Well, firstly it cannot be: it is a patent on specific functionality. The only possible infringers are Red Hat’s direct competitors. RabbitMQ, OpenAMQ, ZeroMQ…? Secondly, the notion of a “defensive patent” is marketing. Perhaps a “patent to trade with another large firm” would be more honest. And such practices are not ethical. Patent deals are very close to cartels. Those who refuse to take out patents, or are too small to afford the inevitable litigation they cause, are excluded and turned into clients.

And this is the point: Red Hat, instead of competing on quality, seem to be taking the same patent FUD route of other firms. “Competitor product X infringes on 237 of our patents. We’re not going to tell you which one.” That would be a tragedy and the community needs to remind Red Hat that software patents are not an option when it comes to selling software.

But What About the Promises?



Red Hat’s promise to not sue FOSS applications is irrelevant to an open standard. Any open standard needs adoption by commercial closed source applications as well.

Secondly, people keep mentioning OIN as if the only threat here was Microsoft and IV. OIN is a Linux patent pool. It is for defending Linux against very specific threats. Nothing about OIN will protect an open standard.

“Red Hat’s promise to not sue FOSS applications is irrelevant to an open standard.”And lastly, this is about an open standard. Think about that for a second. An open standard, and a firm taking patents on essential and obvious extensions to that standard. Unscrupulous at best. Being inside the AMQP process, I can say that Red Hat did this in secret and it looks very clearly like an attempt to own the space. To come back, as they did in the press release, with non-answers, suggests it is a deliberate move.

Note again: Red Hat’s patent, on an extension of AMQP, is not covered by the AMQP agreements, and clearly prevents any closed source firm from implementing XML routing with AMQP.

That is not about fighting off patent trolls. Neither is it about self-defence from attack. It is about using patents to block competition. Further, it is a first strike, thus aggressive.

Irrespective of a firm’s past behaviour and stated intentions, it is what happens on the ground that counts. I have all respect for Red Hat but their behaviour here is unarguably wrong.

Secret patents on open standards are unethical. They defend no-one. They damage the standard. They scare off adopters. They provoke an arms race. We’ve seen this a hundred times.

Defensive or Not?



There is a simple and cheap way to file prior art at the USPTO called a Statutory Invention Registration, which shows up on examiners’ searches and prevents the risk of patent trolls.

“...the patent system is much more friendly to its clients than those who would get in the way. ”There is also a project called Peer2Patent which is looking at new ways to bring prior art to the attention of examiners.

So the point that it is hard to fight patents by pulling up prior art is accurate: the patent system is much more friendly to its clients than those who would get in the way.

Any patent grants an exclusive right to some “invention”, i.e. some space in the market. Red Hat’s patent claims exclusive rights to do XML routing over AMQP. They have promised to share that space with FOSS developers. (A cynic would say: that’s because Red Hat make their money by repackaging FOSS code).

Now you say this can counteract a potential patent threat. Well, another patent might try to occupy the same space, or a different space. If it tries to occupy the same space, registered prior art is the fastest, cheapest, and most reliable antidote.

If the threat patent occupies a different space, then claiming this XML-over-AMQP space has zero effect. Zero. The two patents exist independently.

So what, then, is this patent good for? Only two things. (a) preventing real competitors from entering that space. Namely, Microsoft, Novell, IBM, and the many closed-source firms who today do XML routing and would love to put AMQP into the mix. (b) trading with other patent holders, so that Red Hat can gain access to some other space that is currently closed off to them.

“Who this patent does help is Red Hat, which is why they took it.”Neither of these two scenarios helps AMQP, neither helps FOSS implementers of AMQP, and neither helps the FOSS community. Who this patent does help is Red Hat, which is why they took it.

Examine the facts on the ground and put aside the marketing and rhetoric that companies issue. Sadly, Red Hat answers its shareholders, not the FOSS community. It makes dollars, and does exactly what’s needed to keep its free labour force happy, but not a jot more.

At the risk of ranting, I’d also like to comment on Red Hat’s claim that they “created an innovative patent settlement in the FireStar case that gave broad protection to the open source community.” In fact Sun did the real work, invalidating FireStar’s patents.

It’s a common belief that software patents would be fine if they only affected closed source products. But all software, closed or open, contributes. When we develop new standards, we need the closed implementations as much as we need the open ones. Even if I only make, and use, open source, I’ll defend the right of closed source firms to compete, free of software patents.

Red Hat seem to see software patents as a fair weapon in a fight with their competitors. They sponsor “peer to patent”, which is an attempt to make better, cheaper patents, not eliminate patents. In Europe, Red Hat have stopped working with the FFII to end software patents. They seem happy with the status quo.

“In Europe, Red Hat have stopped working with the FFII to end software patents.”The background to this is that the pro-patent lobby has been trying to get software patents legalized in Europe for a decade, first by modifying the European Patent Convention, then by the 2005 Software Patent Directive, then by EPLA in 2006, and now through the Community Patent and by unilateral decision in the EPO. Each time it’s the patent industry, EPO, lobbyists and certain software firms (mainly Microsoft) claiming that Europe’s small IT firms will die unless they can patent all their work. (The irony is rich but not sweet.)

On the other side, the abolitionists, primarily the FFII and friends in the small IT sector, with little money and just endless sacrifice. Mark Webbink, the former Chief Counsel of Red Hat helped us with a number of initiatives including most vitally the European Patent Conference, which was a series of major events that brought together abolitionists from all sectors, and some very high up. Mark presented the abolitionist case at many conferences. Red Hat joined in many FFII campaigns and workgroups.

In mid-2007 Mark left Red Hat to join the SFLC and in 2008 Rob Tiller took over. From that point, all cooperation with the FFII stopped and my attempts to restart it failed. In a number of key areas, such as a review of the Symbian DLL patent in the UK, Red Hat decided to work alone, ignoring the community.

I can state for the record that Red Hat have not donated a single Euro to the FFII in 2008 or 2009. Yet this is the volunteer organization that was and is most significant in stopping software patents in Europe, the largest economy in the world.

Thus, their claims to be against the software patent system need to be measured against their actual acts. Words are cheap. Deeds and dollars count.

“If Red Hat have filed more patents around it, we know what stripes the tiger is wearing.”So. Facts on the ground. A software firm secretly patents around open standards. Claims patents so it can do deals with other patent holders. Prefers to license patents rather than fight them. Does not fight software patents where it actually could (in Europe). Treats patents as a way of discriminating between FOSS and closed source. Invests in “improving” the patent system by making it cheaper to get more unbreakable software patents.

Red Hat are happy for me to write their code for them. We’ll see how the story with AMQP develops. If Red Hat have filed more patents around it, we know what stripes the tiger is wearing.

In any case the truth will emerge. Either this was a singular mistake by an over-enthusiastic lawyer in Red Hat, and they are fumbling their response; Or it is part of a deliberate move to own AMQP, and there will be more such patents in the pipeline. If it’s a mistake, it’ll all go away. If it’s deliberate, all hell will break loose when the next patent pops. Patents around open standards are a special kind of nasty.

Comments

Recent Techrights' Posts

[Meme] Community of People to be Exploited, Then Thrown Away, Left Behind or Even Slandered
Debian.org front page
Alexandre Oliva's FSF disposition
During my recent trip for LibrePlanet, I was fortunate to have, or at least start, long conversations with nearly everyone in FSF staff
One More (Failed) Attempt to Deplatform the Sites by Harassing and Threatening Webhosts
What we're seeing here is a person who abuses the system in Canada at Canadian taxpayers' expense trying to do the same in the UK, at British taxpayers' expense
12 Days Have Passed Since the Edward Brocklesby Revelations and Debian Project Has Said Absolutely Nothing About That
One must therefore assume they have nothing to say in their defence (covering up severe security failings)
 
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, June 17, 2024
IRC logs for Monday, June 17, 2024
Links 18/06/2024: Further Mass Layoffs and Gemini Leftovers
Links for the day
At IBM, "Brownnosing is the Norm."
Many of these comments are from IBM insiders
Myanmar/Burma: Google Gains One Percent, Microsoft Loses One Percent Since the LLM Hype ('Bing Chat')
it's not hard to understand LLMs didn't replace real search and didn't replace Google, either
[Meme] KISS, not SAAS
Gemini Protocol turns 5 in exactly 2 days
Hostageware: The Threat of Clown Computing (or 'SaaS', Another Misnomer or Buzzword) to Computer Users Everywhere
This problem isn't limited to Free software adopters
Jean-Pierre Giraud, Possible Forgeries & Debian: elections, judgments, trademark already canceled, archaeologist
Reprinted with permission from Daniel Pocock
Six on the Beach: After Losing Six Continents Microsoft is Losing Oceania Too
Based on the 6- or 7-continent view of the world
Links 17/06/2024: Mass Layoffs Accelerating in Tech, Concerns About Impact of the Net
Links for the day
Gemini Links 17/06/2024: Hyprland Analysed and No Use for Betrusted
Links for the day
Microsoft Can Never Make a Comeback Anymore, the Community is Shutting It Out
We're relying on the real community, not fake ones or coopted ones
The World is Becoming (or Has Already Become) Linux
An intercontinental success story
Georgia: Bing Share Fell by Half Since 'Bing Chat' (LLM Hype), Fell Behind Yandex As Well
Georgia's situation is interesting
[Meme] SPI and 'FSFE': Sponsored by Microsoft to...
women's instincts do not matter to these strongmen
[Meme] Shitburger of an LLM
IBM and the Hololens
Links 17/06/2024: Chatbot Nonsense Thrown Under the Bus (Severe Failure, Pure Hype), How to Finance Free Software 'Hackers'
Links for the day
Debian's Personal Attacks Are Upsetting Women, Too
Female Debian Developer: "I Believe Daniel [Pocock] is On the Right Track."
Microsoft's Bing is So Irrelevant in Moldova (1%) That Russia's Yandex is About 5 Times Bigger
How much longer before Microsoft throws in the towel?
Yes, You Can
Unless you live somewhere like Russia...
[Meme] Listen to the Experts
Bill Gates didn't even finish university]
Roy and Rianne's Righteously Royalty-free RSS Reader (R.R.R.R.R.R.) and the Front-End Interfaces
As the Web deteriorates the availability, quality and prevalence of RSS feeds is not improving, to put it mildly
Algeria Shows High GNU/Linux and Android Adoption, All-Time High and Almost Three-Quarters of Web Requests
GNU/Linux was below 3%, now it is above 3%
Mass Layoffs at Microsoft-owned GitHub (About 80 Percent of the Staff in India Laid Off)
It's not just in India
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, June 16, 2024
IRC logs for Sunday, June 16, 2024
Gemini Links 16/06/2024: Scarecrows, Moles, Ham Radio, and No IPs
Links for the day
Africa is Android and Green (Chrome, Not Just Android Logo)
In Africa Firefox is almost below 1% now
Coercion From the "Consent" and "CoC" Crowd is a Self-Defeating Tactic
Freedom of the press; Nothing less
Covering Abuses and Corruption
We'll never surrender to blackmail
According to statCounter, GNU/Linux Increased From 3.77% to 3.89% This Month (Worldwide), Windows Now Below 20% in 78 Nations, Below 10% in 27 Nations
Highest since March (for GNU/Linux)
Ubuntu Running Out of Energy
Its planet too is deteriorating
Links 16/06/2024: In Defence of Email and Why Recycling Symbol Lost All Meaning
Links for the day
Gemini Links 16/06/2024: Computer Science Course Union and Potentiometer
Links for the day
Cross border crime: sale of Swiss insurance in France and European Union without authorisation
Reprinted with permission from Daniel Pocock
Letting Microsoft systemd Manage /home Was a Terrible Idea All Along
systemd-tmpfiles, deleting /home
Patriotism is OK, But We Need Facts and Reason, Not Blind Obedience to Authority
Very seldom in the history of human civilisation has groupthink proven to be of real merit
When You Touch One of Us You Touch All of Us
We have a principled, uncompromising stance on this matter
Links 16/06/2024: New Sanctions Against Russia, Fentanylware (TikTok) Causing More Problems
Links for the day
Social Control Media in Japan: Twitter (X) Has Collapsed, YouTube Rising (Apparently)
What a genius Mr. Musk is!
Windows Cleansed in South Africa (Already Hovering Around 10% Market Share)
Plus Microsoft's mass layoffs in Africa
[Meme] Satya Nadella's Windows PC RECALLS Not What He Did
Satya got lucky
Usage of Let's Encrypt in Geminispace Has Collapsed (That's a Good Thing!)
Ideally, or eventually, all capsules will sign their own certificates or have their own CA
North Macedonia: Windows Down From 99.2% to 28.5%
Last year it was even measured at 26%
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 15, 2024
IRC logs for Saturday, June 15, 2024
Gemini Links 16/06/2024: Hand Held Maneuvering Unit and Hugo Static Files
Links for the day