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This week, the WIPO Standing Committee on the Law of Patents is meeting in Geneva. From FSFE’s perspective, the two most important points on the agenda are the relation between standards and patents, and limitations to patentability.
We’ll go into details in the coming days. On patents and standards, one obvious point is that Free Software runs into all sorts of problems when implementing standards that include patented technology - just think of MP3.
The discussion about limitations to what can be patented is clearly very important for Free Software. Here, the delegates at WIPO will discuss, among other things, whether there should be international rules regarding patents on software.
As I said above, we’ll be having those discussions in the coming days. For now, please click through to FSFE’s opening statement, delivered today:
Continue reading FSFE’s opening statement at WIPO SCP/14
This week, Dutch journalist Brenno de Winter published a leaked draft for a new version of the European Interoperability Framework (EIF).
The current version of the EIF, from 2004, has been referenced around the world as a prime example of how public administrations can make use of Open Standards and Free Software in order to make their IT systems work together. It included a relatively good definition of Open Standards (though FSFE uses a stronger one). The leaked draft is a disaster for interoperability. Where the current EIF is crisp and clear (well, for a policy document), this text is full of emtpy statements.
Instead, it has the ridiculous idea of an “openness continuum”, which Glyn Moody dissects in all its glorious silliness:
Got that? “Closed” lies at one end of the *open* spectrum, which conveniently means we can *include* closed solutions in the interoperability framework because they are part of that continuum.
How did the EC get to this draft? The European Commission produced a consultation document and held a public consultation from June to September 2008. It received no fewer than 53 comments from businesses, industry associations and citizens.
Yet the comments that were submitted are largely not reflected or even addressed in the document. Comments referring to open standards, Free Software and the concept of openness in general were silently dropped. The definition of open standards, which the consultation document had carried over from EIFv1, magically disappeared.
The consultation ended in September 2008, and the new version of the EIF was supposed to be published in June 2009. But it wasn’t. Instead we got infighting between different DGs.
The new text also looks a lot as if the people who are in charge of procuring software for the European Commission are simply trying to justify their practice of buying proprietary programs that don’t work with Open Standards.. This goes directly against statements such as the following by Commissioner Neelie Kroes:
“The European Commission should not rely on one software vendor and must not accept closed standards”.
The reaction to the draft has been very strong. FSFE has sent a letter (below) to the people in member states of the EU who are in charge of eGovernment, telling them that this draft is unacceptable, that it will hurt the public sector (along with European citizens), and discredit the European institutions. The FFII has joined in with 10 recommendations to improve the draft.
Latest news indicate that our strong response is generating results. The EC is now spinning the text as a document that was just intended to test public opinion.
Sure, that’ll be it. The EC drafts an extensive document, holds a public consultation, puts the text under wraps for a year, ignores its own deadlines – and then leaks a text that has very little to do with the one the public had last seen. Just a test. Nothing to see here, move on.
More likely, the “it’s just a test” argument is an attempt to pull the emergency brake on a discussion that ’s going awfully badly for the people who twisted the document. Looks rather like someone in Brussels is very nervous right now.
The European Commission is looking into the Oracle-Sun merger, and MySQL is the biggest stumbling block. For Oracle, MySQL apparently is one of the biggest attractions of the deal. It would mean that the biggest maker of proprietary database software gains control of the best-known Free Software database project. That’s a worrying prospect for many.
During the recent days, a heated public debate saw an open letter by former MySQL CEO Mårten Mickos, closely followed by a contradiction by MySQL’s initial author Michael ‘Monty’ Widenius, which accompanied a submission [pdf] to the European Commission by his new company, Monty Program AB. The final contribution so far was made by a joint letter of three parties: Richard Stallman, James Love and Malini Aisola for Knowledge Ecology International (KEI) and Jim Killock for the Open Rights Group (ORG). On Wednesday, the European Commission declared that it wasn’t satisfied with Oracle’s response to its questions. And today, Groklaw chimes in on the debate, among other things drawing an ever-so-vague connection between Monty Widenius and Microsoft (via CodePlex). There is also news (see p. 26 d and below) that an IBM executive was involved in manipulating Sun’s share price in order to prepare the company for a takeover.
From the Free Software perspective, MySQL’s future is indeed the big question mark over the deal. Another important issue is what will happen to Sun’s software patent portfolio. We’ll look at both these question in depth, and propose a solution.
1 Is MySQL really competing against Oracle’s products?
For the European Commission, this is a competition investigation. It thinks that if Oracle gains ownership of MySQL, that might be bad for competition in the database market. But does MySQL even serve the same market as Oracle? Are the two really competing against each other?
Yes, it seems that way. MySQL’s former CEO Marten Mickos stated to the European Commission that MySQL “focus[ed] on markets which Oracle was ignoring”. That’s not the whole truth. Sun’s Project Peter shows that at least Sun does indeed see MySQL as a competitor for Oracle:
“Project Peter is an internal effort to assist Sun / MySQL customers in migrating from Oracle to MySQL by offering them a comprehensive solution that consists of Professional Services, Best Practices, and a set of approved third party migration tools and utilities that will enable them to move to MySQL in a way that is as easy as possible.”
Mickos’ argument that “Oracle might as well cannibalize themselves, than have someone else do it” is somewhat nonsensical, but points in the same direction: MySQL could only possibly cannibalise Oracle if it poses a real competition. Whether MySQL would eat into Oracle’s market share from inside the company or from the outside is essentially a moot point here. Neither variant is in Oracle’s interest.
So both the current owner of MySQL and its former CEO think that yes, MySQL does compete with Oracle.
2 Scenarios for MySQL in Oracle
If Oracle is allowed to buy MySQL as part of Sun, what possible scenarios are there?
If Oracle gets to keep MySQL, it would own the copyright on the codebase. Oracle could do with MySQL whatever it wanted. It could decide to keep MySQL running as a Free Software project and actively develop it. It could also decide that MySQL is too much competition for Oracle’s own proprietary products, and shut the project down.
Thanks to the properties of the GPL, neither of these scenarios is particularly worrying. The rights once granted cannot be revoked by any party, Oracle included, and customers can rest assured that the code base for forks such as MariaDB will continue to stand on solid legal grounds.
If Oracle decided to throw its weight and resources behind MySQL, the project could develop very quickly indeed. But that would mean that MySQL could soon pose even greater competition to Oracle’s proprietary programs. So this is an unlikely option.
3 The OpenOffice trap
But what happens in the likely case that Oracle neither kills MySQL nor develops it at full throttle?
The travails of OpenOffice provide an example of what that future would look like. OpenOffice is widely used, and it’ll also end up under Oracle’s control. But Oracle isn’t offering office suites of its own, so the competition authorities aren’t worried about this one.
In order to be able to provide proprietary licenses, Sun Microsystems needed to obtain copyright from third parties that wanted to contribute to OpenOffice.org. Typically, developers wouldn’t get any money in return for their copyright assignments. With them, developers sign away the right to sell proprietary licenses to the code they contribute, something that many companies and individuals are reluctant to do.
This reluctance is often based on principle. Developers might object to their contribution being used in proprietary software, or to Sun making money off their work without them receiving a share. They might also be worried that once they had signed their rights away, there would be no way to get them back. Even if people were willing to trust Sun Microsystems more than most companies, there was no telling whether the company would ever sell the rights in OpenOffice.org or be acquired by another company that possibly enjoyed less trust, a company such as Oracle.
It was for these reasons and for reasons of project management that many in the industry shared a feeling that the development of OpenOffice.org was held back by Sun’s control over the project. It was frequently suggested that the project would dramatically increase in contributors, dynamics and development if it were placed in its own non-profit association.
Should Oracle decide to continue the proprietary business with MySQL it would find itself in a similar situation – only that even fewer third party developers are likely to trust Oracle with their copyright on improvements to MySQL. The likely consequences would be slower development of MySQL, a migration away from MySQL towards other Free Software databases and MySQL forks, and possibly a growing fragmentation and re-orientation of the MySQL ecosystem for a couple of years. MySQL would be living in suspended animation.
The good news for all users and customers of MySQL of this would be that this is likely to preserve stability for the next years, although some may receive occasional sales calls to “upgrade to Oracle’s DB.” The bad news for Free Software would be that MySQL will no longer race for first place.
4 MySQL’s dual licensing strategy
It is MySQL’s dependence on a single company which had led the project into this mess. That dependence is a consquence of MySQL’s dual licensing strategy.
The basis of this strategy was that basically all contributors had to assign their copyright to the owner of MySQL. In this way, whoever owns MySQL is the sole copyright holder, and gets to determine the license under which the project is distributed.
According to the letter sent by Monty Program AB to the European Commission, an important part of the revenue for MySQL came from proprietary licenses to manufacturers who embedded the database server into the firmware of mobile phones and similar products, and didn’t want to distribute the resulting applications under the GPL.
When MySQL is embedded into other applications, the connection typically happens via linking. The GPL says that if your program links to a program under the GPL, both programs must be distributed under the GPL. Vendors who didn’t want this got a proprietary license from MySQL AB.
This leaves the embedded market for MySQL 100% dependent on the owner of the copyright to the codebase for supply. Now that owner could soon be called Oracle – presumably not something that MySQL’s founders envisaged years ago when they designed their dual licensing strategy.
Monty AB’s letter argues that MySQL could only grow so quickly thanks to its revenue stream from proprietary licensing. We would argue that what really put the limit on MySQL’s growth was not the “infectuous” (Monty AB’s unfortunate expression) GPL. It was MySQL’s dual licensing approach hampered the growth of what could have turned into a much bigger ecosystem. The present, smaller, ecosystem could end up at the mercy of just one company, Oracle. This dependence is a legitimate cause for concern now. But it’s also a reason to think about whether that model was such a good idea in the first place.
Worrying about proprietary companies and their business models is not one of FSFE’s priorities. Improving the strategic management of Free Software projects is. For MySQL, the dual licensing strategy is a trap that is now closing. It has made sure that MySQL is controlled by only one company: First MySQL AB, then Sun, and now perhaps Oracle. This is never a good situation for a Free Software project to be in.
The dual-licensing approach, and the reliance on proprietary licenses as a source of revenue, has severely hampered the growth of what could have turned by now into a much bigger ecosystem. The strategy has led to a huge gap between the original developer (MySQL as a company) and second-tier firms providing support and development services. It also forced developers who wanted to contribute to MySQL to sign unequal copyright agreements. Some did, some didn’t. As a consequence, MySQL’s development community is not as strong as it could be.
Carlo Piana sums it up nicely:
MySQL is so good that it can be used via a lot of interoperability tools and via network without suffering big loss of performances, therefore the incentives to use a proprietary version come from the licensing issues of the very limited cases when a derivative product is to be distributed on proprietary terms. A proprietary standalone version of MySQL has no appeal compared to the Free Software licensed one. But in general, I know of very few cases of companies keeping a healthy dual licensed scheme (the only one I know for sure is Funambol). Dual licensing is very complicated to maintain, it requires copyright assignment, and this assignment is very hard to obtain from developers (this is at least my experience in drafting assignment agreements for clients).
The only quibble with Carlo’s argument here is that the cases where someone buys a proprietary license for MySQL in order to distribute it as a package together with a proprietary storage engine and/or application might not be as infrequent as he thinks. In these cases, MySQL begins to look more like a library.
5 GPLv3
At the current stage of the discussion, it’s worthwhile to think about the license that MySQL is distributed under. Currently, that is the GPLv2 only. MySQL doesn’t come with the common “or any later version” clause that many Free Software projects use to benefit from updates to the GPL. If the copyright to the code base rests with a fiduciary, that fiduciary could re-license the project to GPLv3.
As more and more Free Software projects move to the latest version of the GPL, a MySQL under GPLv2 would be excluded from integrating code from those projects. By going to GPLv3, MySQL would be in a position to benefit from a stream of innovation in the long term.
In theory, Oracle could also take MySQL to GPLv3. But since the company is quite possibly not interested in seeing MySQL reach the next level, it is unlikely that this would happen. Issues like this are the reason why the choice of license is such a strategic decision for every Free Software project.
6 The easy part: MySQL’s trademark
There is something else that has MySQL companies worried. Sun holds the MySQL trademark. For a long time, companies have offered services for MySQL, often along with drop-in binaries of the software. They’ve made use of the trademark to advertise their work. Rumour has it that Sun did start enforcing the trademark against third-party services, e.g. by getting Google to ban people from buying “MySQL” as an AdWord.
Oracle could could continue this practice,or even enforce the trademark more vigorously than Sun has apparently done, e.g. by stopping third parties from distributing drop-in MySQL binaries. This would severely hurt companies who are offering services around the database.
But Oracle has little to gain from this strategy, since it would essentially shoot itself in the foot. The company is a citizen of good standing in the Free Software community. Oracle has made efforts to become a citizen of good standing in the Free Software community long before the company set out to acqire Sun.
Pulling a trademark stunt such as the one described above would cause a huge stink, but would probably produce very little actual gain for the company. On the contrary, it would push more second-tier service companies to offer support for MySQL forks like MariaDB, decreasing the value of the MySQL trademark.
In order to put concerns about this aspect of the acquisition to rest, Oracle should commit to not enforcing the MySQL trademark against third parties and drop-in binaries derived from the original MySQL software.
7 The ticking time bomb – Sun’s patents [Update]
Sun has a substantial software patent portfolio, and many of those patents cover Free Software. In the wrong hands, they could do a lot of damage.
Carlo Piana (who is acting as legal counsel for Oracle) argues that Oracle might walk away from buying Sun if it doesn’t get MySQL as part of the package. Then Sun, unable to survive on its own, would break apart, and the company’s patents could be bought by anyone. Some particularly worrying candidates include Microsoft, which has started to aggressively enforce patents against Free Software (remember TomTom?), or a patent troll (or “non-practicing entity”) with no reputation to lose.
This is a realistic worry, and it’s a scenario worth preventing. But not at any cost. Though Oracle hasn’t enforced its own patents against Free Software until now, this kindness might not last forever. Oracle could gain a huge amount of confidence from the Free Software community by letting everyone know that it doesn’t plan to enforce its Sun-enlarged patent portfolio against Free Software in the future.
Sun could have defused the ticking time bomb of those patents. It owned them, and could have made sure that Free Software will never suffer from them, through very much the same measures as the ones we’re proposing for Oracle. That’s an opportunity which Sun has missed.
Now Oracle will get the chance to do better. The company could publish a legally binding agreement to not assert its patents against Free Software. This would give Oracle equality of arms against proprietary competitors, becaue it could still enforce those patents against them. At the same time, it would give the company a boost in trust from Free Software developers. Joining the Open Invention Network would be a useful step, too.
[UPDATE: Simon Phipps has pointed out that Oracle became a licensee of the Open Invention Network in 2007. That is very good news, and I wonder why Oracle isn't communicating this fact more aggressively.]
Yet despite the potential risk from those patents, MySQL is too valuable to sacrifice as a pawn in order to seek shelter from the patent danger.
8 The way forward: An independent fiduciary
Fortunately, there is a way out. Oracle could hand MySQL over to an independent non-profit organisation. That organisation would act as a fiduciary, keeping the copyrights in MySQL consolidated in one place. Such an organisation would have to have very strong principles making sure that it safeguards MySQL as Free Software, along with defined measures if it fails to live up to those principles. FSFE’s Fiduciary License Agreement shows the way to go.
This would solve several problems at once. MySQL would no longer be dependent on a single entity that can do as it pleases. This would prevent today’s scenario from repeating itself in the future.
Developers would no longer have to assign their copyright to an entity they can’t fully trust. They would assign it to the fiduciary, which unlike a person or company would be bound to keeping MySQL available as Free Software. If the fiduciary breached that commitment, the copyright could fall back to the original owners. This way, the developer base for MySQL would become much stronger, letting the project advance more quickly.
Oracle would not get control of MySQL, but that’s precisely what the EC’s competition department is worried about. Putting MySQL into the hands of an independent fiduciary would remove that problem. The job of developing MySQL further will rest with the fiduciary and ultimately with the Free Software community.
The advantage for Oracle is also clear: No one else would own MySQL either. No one else could come and acquire the project, take it proprietary, and turn it into an all-out competitor to Oracle. Oracle already has a good many databases as well as access to all of MySQL’s code (it’s Free Software, after all), so the company’s reason to reach for MySQL is probably partly defensive. In the short term, it would also allow Sun and Oracle to complete their deal, so Sun could stop bleeding jobs and dollars as it allegedly does now.
Conclusions
We hope that both Oracle and Europe’s competition regulators consider the options that FSFE is proposing in order to arrive at a solution that everyone can live with - Oracle, MySQL, the Free Software community and the European Commission.
In order to address our concerns, we would like Oracle to answer the following questions:
- What are Oracle’s plans for Sun’s software patent portfolio? Is Oracle prepared to enter into a binding agreement not to enforce its patents against Free Software?
- How will Oracle handle the MySQL trademark? Will other parties be allowed to sell services using the trademark and to distribute drop-in binaries under the customary mysqld name?
- What will Oracle do when it holds the copyright to the MySQL code base in its hands? Is it prepared to assign those rights to an independent non-profit fiduciary?
- Under which license will MySQL be distributed in the future?
- How will Oracle position MySQL in relation to its own proprietary products?
MySQL is an important project, and it is a strong one. Other Free Software projects like Apache and Samba have been able to find support for their development without resorting to proprietary licensing. They each have a broad group of supporters, they’re lively, innovative and independent from any one company. MySQL is certainly in a position to get there too, if it tries.
That’s why the idea of assigning the copyrights to MySQL’s code to an independent non-profit fiduciary is so intriguing, and why FSFE is offering it to Oracle and the EC as a way out of the present deadlock. MySQL could continue to compete with other databases, and competition in the database market would remain healthy. Oracle could rest assured that no other company would get hold of MySQL, eliminating the threat from proprietary rivals. Customers could choose between a number of both proprietary and free databases.
Beyond the individual case of Oracle and MySQL, this solution would set a good example for numerous other Free Software projects. The present danger for MySQL shows how dependence on a single company (brought about by a dual-licensing strategy) puts even the most successful projects at risk. Free Software projects, especially those under the GPL, can live for a long time – certainly longer than the lifespan of many companies. Free Software developers and companies should give their projects a strategy for the long term. If there’s one lesson out of the MySQL case, it is that Free Software loves independence.
The Samba team’s excellent Jeremy Allison writes about the problem that Mono poses for Free Software.
The core problem is that Mono implements technology that is very likely patented by Microsoft. Microsoft, in its turn, has now started to aggressively enforce its software patents, as shown by its lawsuit against TomTom earlier this year.
Jeremy highlights an important difference between the agreement that Samba has with Microsoft, and the deal that Mono’s backer Novell has struck with Microsoft. Both concern software patents that are covered in a specification. However:
Miguel’s employer, Novell, has a patent agreement with Microsoft that exempts Mono users from Microsoft patent aggression, so long as you get Mono from Novell. Miguel takes pains to point this out. This is not a level playing field, or software freedom for all. This is a preferred supplier trying to pretend there is no problem. Sure there isn’t a problem, for them. If it isn’t good enough for Miguel, why is it good enough for other developers ?
This cool-headed and knowledgeable analysis is definitely worth a read.
High Noon in Brussels. At the end of her term, competition Commissioner Neelie Kroes is wrapping up two open cases against Microsoft. The company offered to settle in July 2009.
FSFE is involved in both of cases. We are concerned that the Commission may end up reversing years of successful antitrust work if Neelie Kroes settles for far too little in order to close a deal, any deal. That would mean that Europeans remain stuck with the present Microsoft monopoly in most areas of the desktop. Even worse, that monopoly would have the Commission’s official seal of approval, effectively ruining many years of outstanding work by Ms Kroes and her team.
The first of the two cases is the so-called “browser case”. Web browser maker Opera filed a formal complaint with the European Commission in 2007 on Microsoft’s abuse of web standards, as well as the company’s practice of tying its Internet Explorer (IE) browser to its operating system. The Commission investigated, and formally opened proceedings against Microsoft in January 2009.
FSFE joined this case as an interested third party, in order to fight the way in which Microsoft uses proprietary extensions to web standards in order to unlawfully segment the Internet. So we can give input and advice to the Commission, and take part in the official hearings. This is similar to the role we had in other antitrust cases against Microsoft, most notably the Samba case, which ended in a resounding victory for Free Software. Unfortunately, the European Commission decided to drop the question of standards from its investigation, following up only on the force-feeding of IE to Windows users.
The second case is about interoperability. Microsoft refuses to let competitors make their software work with many of the company’s desktop applications, such as Outlook/Exchange, Office, SharePoint and .Net. Here, the European Committee for Interoperable Systems (ECIS) submitted a complaint in 2006, but the Commission hasn’t formally opened a case yet. If it ever does so, FSFE will represent the interests of Free Software in the proceedings.
Browser case: what’s wrong with Microsoft’s proposal for a settlement?
What would real competition in the browser market mean? Users could freely and easily choose among a wide variety of browsers, rather than having one program imposed on them. Installing and using any browser on a Windows system would be just as easy as using IE. No lengthy download and installation procedures, no fiddling with setup menus, and no need to tell every single application that it should use your preferred browser rather than the one that happens to be made by the same company as your operating system. Windows would play nicely with all of them.
But this is not what Microsoft’s proposed commitment [.doc] will lead to. Here’s why.
Downloading vs pre-installing browsers
Microsoft proposes that when the user turns on a fresh Windows 7 install for the first time, she would see web page - in Internet Explorer, no less - that would let her choose between different browsers. She could click on any one of those to download and install it on her system.
This so-called “ballot screen” approach sounds good for about as long as it took you to read the last paragraph. Microsoft has shown time and again that it will use every trick in the book to prevent competition. So, as we at FSFE have said before, the devil will be in the details.
Downloads are cumbersome if you have a slow connection, and may fail frequently. This makes choosing an alternative browser more difficult than sticking with Internet Explorer, so most people won’t bother.
That is why Microsoft should pre-install the alternative browsers (at least those where the browser maker wants it), so they are there as soon as the user wants them.
Which browsers on the ballot screen?
Which browsers will appear on the ballot screen? Microsoft proposes to choose the browsers that are presented on the ballot screen according to their market share. That would largely freeze the market in today’s state, locking out competitors. Given that IE has been steadily losing market share over the past years, that would make Microsoft very happy indeed.
Instead, browsers for the ballot screen should be selected according to a set of clear criteria, and the Commission should monitor the selection. These criteria should be
The selection should be updated every few months.
Existing market share tells us which browsers are widely used already. But that in itself isn’t sufficient to allow competition and innovation in the browser market. By using the speed of growth in market share as a criterion, new and innovative browsers can get onto the ballot screen. By including browsers that are available on several platforms, users can more easily move between different operating systems without having to get used to a different browser each time.
Integration into Windows
Any browser that the user chooses needs to be integrated into the Windows operating system to the same degree that IE is integrated today. For instance, the browser’s icon needs to replace the IE icon everywhere, and all applications that rely on a browser should point to the browser that the user has selected, rather than IE.
Worldwide monopoly, worldwide remedy
The World Wide Web is just that - worldwide. So is Microsoft’s desktop monopoly. If any settlement between Microsoft and the Commission is going to have any effect on the market, it has to apply in all countries, not just in Europe as Microsoft is proposing.
Interoperability
The second case is about Microsoft’s constant refusal to let competitors make their programs work with the company’s dominant desktop applications.
Microsoft has always opposed giving competitors with enough information on its file formats and protocols to produce drop-in replacements for products such as Outlook or SharePoint. In the Samba case it finally had to do so, but had to be dragged kicking and screaming all the way there.
The “Interoperability Undertaking” [.doc] that Microsoft has proposed is absolutely insufficient. It will hardly give competitors enough information to actually compete, and is likely to leave Free Software in the cold. Those competitors that succeed anyway will live under a Sword of Damocles, because Microsoft may hit them with a patent suit at any time.
So far, Microsoft is only offering the interoperability information on what is falsely labeled as “reasonable and non-discriminatory” (RAND) terms. (For a full discussion of this issue, see FSFE’s analysis here.) From our perspective, such terms are both unreasonable and discriminatory, because they make it impossible to use the interoperability information in Free Software.
What we need for a software market with real competition is a binding commitment from Microsoft to provide and update interoperability information on terms that are compatible with Free Software. This has to be a legally binding document, and needs to include guarantees as well as clear remedies if Microsoft fails to comply.
This commitment could be based on the PFIF agreement (here’s the PDF) under which the Samba team receives information from Microsoft. Among other things, the agreement requires Microsoft to provide the information for a one-time fee. Since there are no running royalties on sales, this is compatible with Free Software under the GPL.
Patents
In any such agreement, patents will play a central role. Microsoft expressly refuses to say that it won’t enforce patents on interoperability information. This lets the company use the same strategy of sowing fear, uncertainty and doubt (FUD) with which it fights GNU/Linux: It simply claims to have patents, but doesn’t say what they are or what they cover. Precisely because of this vagueness, companies will hesitate to actually make use of the interoperability information, for fear of being sued into oblivion by Microsoft.
So while competitors would have enough information to build software that can compete with Microsoft on an equal footing, they would frequently be too scared of being sued for patent infringement to actually use that information. This means that Microsoft would keep the desktop monopoly which it holds today.
Conclusions
In short, neither Microsoft’s proposed settlement nor its promises on interoperability are acceptable in their present form. If the Commission were to strike a deal on this basis, the lack of competition in browsers and desktop applications will remain just as bad as it is now.
As FSFE’s legal counsel Carlo Piana notes, the Samba case is an excellent precedent for both of these antitrust investigations. It was a case against the same company using very similar anticompetitive practices. Its victory in the case gave the Commission’s antitrust authorities a considerable boost. Importantly, the Samba case was resolved in a way that lets Free Software compete with Microsoft’s offerings. This is a crucial point, because in many cases the strongest competition for Redmond’s programs comes from Free Software.
The only party in this affair who needs to close a deal is Microsoft. They want to avoid another crushing defeat like the one they suffered at the hands of the Commission and FSFE in the Samba case, where the issue was interoperability in workgroup servers.
The Commission does not need a deal. Its mission is to promote competition in the European software market. It has built up a highly effective team of experts to deal with Microsoft over the years.
By imposing an artificial deadline on herself, Neelie Kroes needlessly gives away a very strong hand. Sure, nobody knows who will succeed her as competition Commissioner. But giving herself only a few days or weeks to close the deal means that she will have to settle the case on Microsoft’s terms, perhaps with a few token concessions. It’s easy to predict that this means that the settlement will let Microsoft continue to exclude the competition every step of the way, the way it always has.
Commissioner Kroes, you and your team have done splendid work over these past years. We ask you not to tarnish your legacy with a hasty deal. Please, do not snatch defeat from the jaws of victory. Europe deserves better.
We work for software freedom every day, but today is the day we mark to celebrate Free Software. Over 500 teams in 90 countries are holding events, meetings and parties, for example in Vienna and Leipzig.
Right ahead of this special day, FSFE’s Executive Director Christian Holz (2nd left) and I (left) yesterday got together with Richard Stallman and GNU hacker José Marchesi (right), and discussed how to bring the Free Software movement in Europe closer together.
It was a very productive meeting with many good ideas, and the smiles on the picture are certainly heartfelt. Enjoy Software Freedom Day!
Microsoft on Tuesday got a taste of its own medicine when a judge in
Texas ruled [pdf] that it is infringing an XML-related patent held by
Canadian XML specialist i4i.
The judge issued an injunction that becomes effective within 60 days,
barring Microsoft from selling the 2003 and 2007 versions of Word in
the United States. It also has to pay US$ 290 million in damages.
Microsoft, unsurprisingly, says it will appeal.
This incident goes to show that not even the biggest companies with
the largest armies of lawyers can consider themselves safe from the
damage that software patents do. Or as Derek Keats is putting it:
“It also highlights the bizarre legal world that we live in. Future
generations will look back on us in incredulity, perhaps in a manner
not unlike the way we look back on the bizarre world of the
Inquisition.”
Smaller companies, such as the SMEs that form the backbone of Europe’s
economy, wouldn’t stand a chance if software patents became
enforceable in Europe, not to mention individual software
developers. That goes for proprietary and Free Software alike.
The Swiss Administrative Court has effectively stated that
Switzerland’s public administration depends on Microsoft to work
properly.
In a preliminary decision from early July, the court had allowed a
three-year, 42 million CHF contract between Microsoft and the Federal
Bureau for Building and Logistics to go ahead, even though the
contract had been awarded without a public bidding process. A group of
18 Free Software companies has appealed against the contract,
including Red Hat.
In its decision, the court said that suspending the contract would
“hinder the public interest related to the good performance of public
services”.
If that is really the case, it is high time for the Swiss public
sector to break free from its dependence on a single vendor. Free
Software offers users strategic control over their infrastructure.
This problem is by no means limited to Switzerland. Across Europe,
it’s quite common [pdf] for public bodies to either hand out contracts
to proprietary software vendors without a proper public bidding
procedure, or as Mark Taylor has noted, to demand that the solution
they are buying should tie in with Microsoft technologies.
Last week WIPO held a conference on “Intellectual property and public
policy issues”. That WIPO finally starts to consider the real consequences
of the rules it is making is clearly a good thing. But apart from some
very good contributions by people from the UN system, the conference
quickly acquired the bitter taste of a promotional event for the
status quo.
The speakers from the UN system, such as WIPO’s new Director General
Francis Gurry, and the Chair of the patent committee Maximiliano Santa Cruz,
made it clear that there is fresh air at WIPO. Gurry said that it was necessary
to balance
“the incentive […] in the creation and development of
technology, and the need, on the other hand,to diffuse the social
benefits of new technologies.”
Not long ago, the very idea of balancing patents with anything at all
was proposed only by a courageous few at WIPO. Santa Cruz hit the
same note when he highlighted that
“the intellectual property system does not exist in a test tube. It
must primarily be a tool for humanity’s social, economic and
cultural development.”
Unfortunately, the conference programme largely went downhill from
there. On the topic of neglected diseases and access to medicines, a
speaker from one large pharma company, Pfizer, was quickly followed by
another, Sanofi-Aventis. The organisations who have really
been driving this topic forward, such as Medicins sans Frontieres,
simply weren’t invited for the discussion.
On the topic of green technology, “industry” – a very large and
diverse group of stakeholders – found itself represented by General
Electric. GE may be the world’s largest company, but that very fact
means that it is not representative of what most firms would want from
WIPO. The patent system favours large companies and their armies of
lawyers over small ones, and GE is able to muster the largest army of
them all. The fact that the company is based in the world’s richest
economy, the United States, makes it even less representative.
Thus it was no surprise that GE’s Carl Horton wanted WIPO to keep the
patent system strict. He blatantly ignored that there are other ideas
for providing incentives for innovation which avoid the negative
effects of patents.
The real low point for the conference’s substance were the talks of
Lee T. Feldman of the US-based National Peace Foundation, and that of
Daniel Johnson, an economist who was presenting a research project
financed by Feldman’s foundation.
Feldman’s talk was mostly devoid of arguments, but came down to the
claim that WIPO should continue to promote a strict system of
copyright and patents as it has in the past, since otherwise disaster
would ensue.
Johnson’s talk about the impact of patents on environmental
innovation, according to him, was based on his analysis of over 200
economic research papers. Conveniently, many of those were his own. He
claimed to present unbiased evidence for policymakers. However, he
just kept repeating the phrase “there is great evidence that…”,
rather than actually presenting that evidence, much less putting forth
the facts which he spoke about in his introduction.
Astonishingly, Johnson seems to have discovered a perpetuum mobile. At
around 5:45 in the recording of his talk he claims that patents do not
raise the cost of technology. This would mean that all the lawyers’
fees that go into filing, licensing and defending a patent simply do
not affect the price of the products based on the patented
technology. Even though this clearly goes against common sense, he saw
no need to give any proof for what he was saying. Instead, he quickly
moved on to the next topic.
The result of all this was that despite excellent high-level speakers
from international organisations, the conference ended up mainly
representing the positions of those who have long been in control at
WIPO: Governments of the US, the EU and Japan, along with large
industrial rightsholders. There were hardly any industry stakeholders
from developing countries, and no public interest NGOs represented
among the speakers.
By not including the broader picture, WIPO has missed out on the best
opportunity in years to demonstrate that it wants to play a productive
role in helping humanity to manage its knowledge wisely. There clearly
are good intentions in the organisation. Now WIPO only needs to act on
them.
Das war wohl mal fällig:
Jürgen Seeger, Chefredakteur des IT-Magazins iX, das wie heise online vom Heise Zeitschriften Verlag
herausgegeben wird, hat sich heute bei der Staatsanwaltschaft Hannover
selbst wegen Vorbereitung des Ausspähens und Abfangens von Daten nach
Paragraf 202c StGB angezeigt. Grund ist eine Toolsammlung auf der
Heft-DVD des iX Special "Sicher im Netz", mit dem man Schwachstellen in
der IT-Infrastruktur aufzeigen, aber auch ausnutzen kann.
Bin gespannt, was dabei rauskommt.
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