26 January 2011

As Open Source Flagships Attack CPTN/Novell Patent Deal, Some OSS Advocates Take More Pragmatic Positions

[US Department of Justice, home of the Antitrust Division; via Wikimedia]
In the course of the announced purchase of 822 Novell patents by CPTN Holdings LLC - a consortium of Microsoft, Apple, EMC, and Oracle - as a part of Novell's merger into Attachmate Corporation (see press release), the Open Software Initiative (OSI) lodged a complaint with the Bundeskartellamt (German Federal Cartel Office) against an announced "notified merger project", i.e. the request of the four software heavyweights to establish a patent consortium (see posting). CPTN has withdrawn their request a couple of days later for "procedural" reasons, rather than in reaction to OSI's complaint (see posting).

On the level of European competition law, apparently, no concerns exist about CPTN's patent transaction, as reported on the FOSSpatents blog. On 20 December 2010 British conservative MEP Emma McClarkin submitted a written question to the EU Commission in which she raised that
this [patent] move strengthens the hold Microsoft has over its competitors, which could potentially harm consumer choice and increase prices. Is the Commission aware of this situation? If so, does the Commission believe there have been any infractions by Microsoft of EU competition laws?
Joaquín Almunia, EU Competition Commissioner, responded on 17 January 2011 that
it appears unlikely that the proposed transaction requires a notification to the Commission under the Merger Regulation. Furthermore, [...] the Commission has currently no indication that the mere acquisition of the patents in question by CPTN Holdings would lead to an infringement of EU competition rules.
As opposed to the positions taken by OSI and FSFE, prominent anti-patent campaigner Florian Müller "couldn't find any real substance" in their complaints:
Those complaints came down to indicating a dislike for patents and distrust for the companies behind CPTN Holdings. But they didn't raise any legal issues that would be specific to this deal.
He pragmatically concluded that "politicians don't stop patent offices from granting them. So let's come to terms with it: this is the law of the land". Such status-quo-preserving observations are not self-evident for a leading figure of the successful no-software-patents campaign against the adoption of the Computer Implemented Inventions Directive in 2005, a piece of EU legislation that was intended to bring an EU-wide harmonisation of the treatment of so called computer-implemented inventions. In fact, Müller now takes the somewhat adapted position (see e.g. this posting) that "[s]oftware patents are a fact of life [; t]heir abolition isn't achievable" and now appears to advocate for some sort of cooperation between FOSS and the software patent world:
FOSS must find ways to deal with patents, and in fact, it already has. In particular, it must continue to find constructive and realistic ways rather than just insist that patent holders waive all rights. [...]  If the FOSS side and the patent side are both reasonable, the combination of both works without problems.
Back in October 2010, Joff Wild, editor of the widely recognised IAM magazine, supported Müller's views in a posting headlined "anti-software campaigner changes his mind" and recommended:
[R]ather than bang their heads against a brick wall and make all kinds of demands that no-one is going to take seriously, it makes sense for the open source movement to do just as Mueller suggests and to find an accommodation with patent owners. As he also warns, those elements of the movement that refuse to compromise will just end up making themselves irrelevant.
One recent example of such pointlessly banging heads to wrong walls was the campaign against the USPTO's new Interim Guidance (see press release and earlier posting) for determining patent eligibility in view of the Supreme Court's Bilski opinion, in which the Free Software Foundation (FSF) almost desperately invited their followers to "encourage the USPTO to stop issuing software patents" by writing "to the USPTO [...] and tell them that their new guidance should include a strong stand against software patents". This dubious e-mail campaign was criticised by Müller (and patent attorneys) as a spamming strategy doomed to fail from the beginning, which immediately provoked agonizing questions among open source activists such as "Has FOSS lost the battle?" or "What is Florian's strategy?".
Meanwhile, leading open source lobbying organisations OSI and FSF continue to fight the CPTN/Novell patent deal (their collaboration has been celebrated as "unprecedented" by OSI board member Simon Phipps), this time before the Antitrust Division of the US Department of Justice, which OSI/FSF tries to urge "to investigate the CPTN transaction thoroughly and consider appropriate remedies" by a joint position statement being essentially identical to the complaint lodged with the German FCO (see also reports on H blog and PCWorld).

Before the US Antitrust Division, a third party may either report antitrust concerns by a rather informal inquiry or formally request a business review according to the Business Review Procedure under 28 C.F.R. § 50.6. The joint statement appears to be of the more informal type, since it fails to reasonably express legal (antitrust) issues but instead raises political and rather idealistic points, based on the general concern "that CPTN Holdings may use these patents to attack FLOSS software". The joint OSI/FSF statement basically addresses
  1. the competitiveness of open source software and its role as "credible competitor to traditional proprietary software" (items 1 to 3);
  2. that CPTN has recognised open source software as "the major competitive force to their business" (item 4);
  3. assumptions that the CPTN transaction has been conducted in secrecy to hide "nefarious intentions" (item 5), and
  4. that "CPTN has all motives to launch patent attacks against companies delivering solutions based on [open source software]" (item 6).
My guess is that this attempt to discredit the patent ecosystem and CPTN member companies by unsubstantiated allegations as to their "nefarious intentions" and aggressive motives will probably not urge antitrust authorities to act against the CPTN/Novell transaction. The celebrated "unprecedented collaboration to protect software freedom" may, however, turn out to be appropriate to obtain reasonable press coverage and to motivate existing and acquire new followers for the movement.

Instead, it would have been a much better contribution for the open source idea to accept that patents are not a crime but a legitimate property right and business model and to better follow a more creative and collaborative agenda, e.g. an "if-you-cant-beat-em-join-em" strategy, as sketched by Eben Moglen, Chairman of the Software Freedom Law Center, in a LinuxCon keynote in view of the "Bilski shock" (see e.g. ArsTechnica), based on the old but pragmatic open patent idea, as implemented e.g. by the Open Inventor Network or the Open Patent Alliance. This would at least be an option to prevent that "those elements of the movement [...] will just end up making themselves irrelevant", as Joff Wild put it in his above-mentioned article.