Betwixt and Between: Open source software and RAND standards development patent policies

What is the problem? Is this actually a “problem” or a matter of differing goals? What is the lesson? Is it possible that the real problem is the market distortion that could occur when advocates from one side promote government intervention to their advantage (and to the disadvantage of other development and distribution models)? Government policy makers contemplating to alter rules affecting standards setting must exercise extreme caution.

On the one hand we are speaking of the numerous and varied licensing conditions that have evolved around the sharing of “Open source software” defined as:

“… computer software that is available in source code form for which the source code and certain other rights normally reserved for copyright holders are provided under a software license that permits users to study, change, and improve the software.” (Source Wikipedia)

And on the other hand we speak of “RAND standards development patent policies” that provide for “Reasonable and Non-Discriminatory” (RAND)  (see e.g. Abanet.org) licensing terms and conditions (including possible royalties) that might comprise a license covered by an assurance of a license from the holder of an essential patent to a particular standard.

This is to remove from our discussion the term “open standard” which can be confused with, but is distinctly different than either of the previous. We shall leave discussion what is an “open standard” for another day.

What is the problem? Some in the OSS community contend they are disadvantaged by RAND standards development patent polices where patent owners are allowed to seek reasonable royalties (and/or other reasonable terms and conditions) in licensing patents that are essential to practice the standard. They observe that OSS may be foreclosed from inclusion in standards employing RAND patent policies due to several elements generally understood to define OSS (Source Wikipedia):

“… 1. Free Redistribution

The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale.”

and

“… 3. Derived Works

The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software.”

A generalization is just that, and all generalizations are suspect.

Nevertheless one such recent generalization about OSS which brought to me a smile, this by Gene Quinn:

“But too many open source regimes are like the Borg of Star Trek fame, or a little like the Mafia. Once you are a member you simply cannot get out. With too many open source regimes once you join and take then anything that you produce must be free to be taken by other members of the consortium. It really is akin to a patent deal with the devil, and ignores human tendencies” (Source IPWatchdog.com)

I believe Quinn is observing whatever improvements might be made and contributed will be difficult if not impossible to monetize as Intellectual Property and that this contrasts with human nature to desire rewards for individual efforts.

Another important generalization is that there are important distinctions among OSS licenses. Not all open source licenses are necessarily in conflict or incompatible with RAND patent licensing (including royalties). Rather than being a conflict between the Open Source definition and RAND, the tension instead comes from certain patent licensing restrictions which are included in some Open Source licenses and RAND.

Välimäki and Oksanen observe*:

“… popular open source have a built-in termination mechanism that does not allow the development of software that requires any kind of royalty payments for third party patents. In more technical wording, GPL and LGPL are incompatible with patent royalties: if there is a patent for some software invention and that patent is not licensed for free to everyone forever, it is not possible to develop free software for that invention.”

They continue however:

“To be precise, not all open source licenses have such patent clauses. For instance the popular BSD license lacks one.”

Is this about a problem or a matter of differing goals? Distinctions exist between the goals of OSS and standards. A goal of OSS generally is that of permitting users to study, change, and improve the software. A goal of standards generally is about creating compatible or interoperable implementations and NOT about permitting multiple and varied changes. Andy Updegrove stated this succinctly in assessing a “non-assert” patent pledge concerning a standard:

“The pledge only relates to “compliant” implementations, which does run afoul of the open source right to change anything. From a standards point of view, that serves a purpose, as it furthers the spread of interoperable implementations, which is what standards are all about. That works well from that perspective, but may leave some open source advocates less happy.” (Source Consortiuminfo.org)

Carrying forward the notion that OSS actually describes a diversity of licenses, others here correctly opined: “all open source licenses are not created equal. “ There are upwards of 75 OSI “approved” open source licenses in use today (however dozens other non-approved licenses, see Opensource.org). It is all in the details; how well the current Oracle – Google patent dispute illustrates this point! In its complaint, filed August 12 2010 (see Scribd.com) with the U.S. District Court for the Northern District of California, Oracle said Google’s Android operating system software consists of Java applications and other technology. As such, it infringes on one or more parts of seven different patents. When Oracle purchased Sun Microsystems in 2009, it acquired Java.

Sun, though it amassed thousands of patents, was one of the biggest backers of freely sharing programming technologies. Though Sun cut licensing deals to sell Java, it offered free versions under what the industry calls open-source licenses.” (Clark and Tuna on Wall Street Journal)

Some have questioned how could Oracle now seek to enforce its patents in Java (as it has with respect to Google) and at the same time support organizations with strong positions that such commonly used standards as Java should be available without any royalties?

“However, Oracle’s patent infringement suit against Google is also an aggression against the notion of open standards. Java should be an open standard, and according to Oracle-backed organizations such as the OFE and ECIS, such standards would have to be made available on a royalty-free basis.**” (Source Fosspatents.com)

Why should it come as a surprise that businesses strive to maximize their potential value? In standards setting the term for this behavior is, “enlightened self interest”. Exactly how Oracle makes its Google case is a matter for the attorneys and juries; however, the answer may lie in the concept of multilicensing:

“The practice of distributing software under two or more different sets of terms and conditions. This may mean multiple different licenses or sets of licenses. … When software is multi-licensed, recipients can choose which terms they want to use or distribute the software under.” (Source Wikipedia)

These snippets from Why Has Oracle Sued Google? from the “land down under” indicates there may be details within Sun’s original commitments that make these commitments consistent with the current Oracle litigation.

“This appears to be the story of a clever strategy by Sun/Oracle to monetise intellectual assets (patents, copyrights, and other intellectual capital embodied in the Java platform) through open-source licensing … This strategy gives Oracle the best of both worlds: freely available development platforms to encourage widespread adoption and standardisation; and commercial licensing in the most lucrative (high volume) market segments”

What is the lesson? This could be about a real problem when advocates from one side promote government intervention to their advantage and to the disadvantage of the other when a balanced analysis leads to a different conclusion. Should policy makers try to influence the conditions for different development and business models through standardization policy?

The global voluntary consensus standards community has a long and generally successful experience with the application of RAND standards development patent policies. The earliest such text from the predecessor to the current 2010 patent policy (see ANSI) of the American National Standards Institute was nearly 80 years ago in 1932:

“That as a general proposition patented designs or methods should not be incorporated in standards. However each case should be considered on its merits, and if a patentee be willing to grant such rights as will avoid monopolistic tendencies, favorable consideration to the inclusion of such patented designs in a standards might be given.” (Source GTW Associates)

The notion that any “RAND standards development patent policy” discriminates against certain OSS is not a matter of “discrimination” in the text of such a RAND standards development patent policy. It is a matter that some self-created elements in some of the OSS licenses make it impossible for the software subject to those licenses to meet at the same time the RAND standards development patent policies that have existed for decades.

Regulators and policy makers around the world face complex questions when contemplating government actions and rules affecting standards setting or use. Now with appeals in the US for “open government” it may seem at this time of government budget deficits that standards based on OSS or that royalty free licensing policies at SSOs merit attractive consideration. The Government of India recently proposed Draft Policy on Open Standards for e-Governance including such text as, “… the patent claims necessary to implement the Identified Standard shall be available on a Royalty-Free basis for the life time of the Standard.“

Regulators and policy makers around the world take heed. Such government actions are not as simple as they might at first appear. There are many factors bearing on the choice by a standards developer of its patent policy. Standards Developing Organizations balance many and often conflicting interests and needs of their members and users of their standards in making this choice. In some cases the market corrects such mistakes that SDOs may make in this regard (resulting in the standard failing to gain acceptance or market share) and the standard or standards developer becomes irrelevant.

Government policy makers contemplating actions to alter the rules affecting standards setting should use extreme caution and they should treat as circumspect claims by participants that open source software is disadvantaged by the RAND regime, long employed across a multitude of standards development organizations.

Join the Forum discussion here: http://www.talkstandards.com/questions-for-standards-and-oss-open-forum/

*Mikko Välimäki and Ville Oksanen, “Patents on Compatibility Standards and Open Source – Do Patent Law Exeptions and Royalty-Free Requirements Make Sense?”, Sept 25 at http://www.law.ed.ac.uk/ahrc/script-ed/vol2-3/valimaki.asp.

** Here is use of the term “open standard” to define presumably a standard where patents are exluded or available royalty-free but where there is ample room for misunderstandings.