Date: 28 Feb 2000
From: Richard Caley
Subject: Open Source, Patents and O'Reilly
A quick topical question.
You are probably aware of
RMS' [Richard Stallman's] recent call for a boycott of
Amazon.com for their persuit of a software patent claim against
As a company with close connections with both Amazon and the Open Source
community, O'Reilly's position on this issue would be very interesting. To
me and I'm sure to many others.
I have struggled with this issue since RMS first approached me to sign
on to his campaign. I've declined to urge a boycott because I do think
that Amazon provides an incredible service, and one that many of our customers
find valuable. At the same time, I completely agree with RMS that the Amazon
1-Click Patent is one more example
of an "intellectual property" milieu gone mad.
In the first place, this patent should have never been allowed. It's a
completely trivial application of cookies, a technology that was
introduced several years before Amazon filed for their patent. To characterize
"1-Click" as an "invention" is a parody. Like so many
software patents, it is a land grab, an attempt to hoodwink a patent system
that has not gotten up to speed on the state of the art in computer science.
I'm not completely opposed to software patents, since there are some things
that do in fact qualify as legitimate "inventions", but when I see people
patenting obvious ideas, ideas that are already in wide use, it makes my
I also want to say that a patent on something like "1-Click ordering"
is a slap in the face of Tim Berners-Lee and all of the other pioneers
who created the opportunity that Amazon has done such a good job of
exploiting. Amazon wouldn't have existed without the generosity of
people like Tim, who made legitimate, far-reaching inventions, and put
them out into the public domain for all to build upon. Anyone who puts
a small gloss on this fundamental technology, calls it proprietary, and
then tries to keep others from building further on it, is a thief. The
gift was given to all of us, and anyone who tries to make it their own
is stealing our patrimony.
Patents like this are also incredibly short-sighted! The web has exploded
because it was an open platform that sparked countless innovations by users.
Fence in that platform, and who knows what opportunities will never come to
I urge Amazon to give up on this patent. I am confident that it will
eventually be overturned in any case. And in the meantime, Amazon will not
only reap a harvest of ill will, they will erode the soil of innovation on
the web. What's more, they are a fierce competitor who has already established
a dominant market position. They can win without resorting to cheap tricks.
I'm sorry to have taken so long to respond to your question. I thought it
best to give Amazon a chance to respond to a private letter before going
public with my response. Here's the email I sent to Jeff Bezos on January
Subject: Amazon 1-Click patent
Date: Wed, 05 Jan 2000 10:03:59 -0800
From: Tim O'Reilly
I wanted to give you guys the heads up that I'm getting a lot of pressure
from my customers (via my Ask Tim column on our website and direct customer
e-mail) to comment publically on the Amazon 1-Click patent. I was also
approached by Richard Stallman to help him publicize his Amazon boycott, and
I declined, but I do want to let you know that I agree with his message
although not with his methods. I will be forced to make some kind of public
comment shortly, and I wanted to let you know what the substance of it will
be before it goes out to the world.
First off, I think that you are reaping a harvest of ill-will with the
technical community. While I know you are setting your sights on a wider
consumer audience, the serious technical community represents the core of
your early adopters and many of your best customers, especially in the book
market. You have only to look at the presence of O'Reilly books on your
bestseller lists vs. those at your competitors to realize how much of your
computer book sales are driven by the hard core technical community that is
O'Reilly's customer base. And I can tell you that those customers are solidly
against software patents.
Second (and this is the point most important to me), the web has grown
so rapidly because it has been an open platform for experimentation and
innovation. It broke us loose from the single-vendor stranglehold that
Microsoft has had on much of the software industry, and created a new
paradigm with opportunities for countless new players, including Amazon.
The technologies that you have used to launch your amazing success would
never have become widespread if the early web players, from Tim Berners-Lee
on, had acted as you have acted in filing and enforcing this patent. Because,
of course, you are not the only one who can play the patent game. And once
the web becomes fenced in by competing patents and other attempts to make
this glorious open playing field into a proprietary wasteland, the springs
of further innovation will dry up. In short, I think you're pissing in the
Patents such as yours are the first step in vitiating the web, in raising
the barriers to entry not just for your competitors, but for the technological
innovators who might otherwise come up with great new ideas that you could
put to use in your own business. It's a well known technology truism that
all of the smart people don't work for you, and that one of the surest ways
to success is to get more ideas and more work out of people outside your own
fences. This is one of the key insights that brought us the internet, and is
the key to the success of open source projects like Linux, Perl, and Apache.
There are more than a few similarities between sustainable farming
(versus resource exploitation) and technological innovation that are
worth meditating upon. You may gain short-term advantage by taking as
much as you can from the soil without regard to building it up again,
but eventually, your soil quality will decline, and you'll find
yourselves having to spend more and more on added fertilizer.
You've gained enormous competitive advantage by making use of technologies
that were freely given to the world. If players like yourselves succeed in
replacing that gift economy with a dog-eat-dog world in which everyone
tries to keep their advances to themselves, and worse, tries to keep
others from replicating them, you'll soon find yourself either spending
a larger and larger part of your budget on developing your own technology,
or, more likely, you'll find yourself hostage again to commercial software
vendors whose interests may not be aligned with your own.
If you see yourselves primarily as a technology company, you might want
to play the Microsoft game of trying to corner the technology market
with proprietary APIs, file formats, and patents, but if you see
yourself as a great customer service and marketing company, you want
other people inventing technology platforms that you can build on.
That's been a key part of your success so far: You've been able to take
a great open platform, and build vertical applications that provide a
fabulous service to your customers. Filing frivolous patents will only
retard the growth of the platform.
And that's a third point: The patent is very unlikely to be upheld in
the long run. It's a classic example of the kind of software patent
that would never be granted if the patent office had even the slightest
clue about software: A trivial application of cookies. I'd be very surprised
if there isn't a fair amount of prior art even in using cookies in conjunction
with saved credit card information. But even if there isn't, the basic method
of saving state information about prior visitors is so fundamental that
there's nothing new in what you did.
Finally, I want to say that I admire you guys tremendously. I speak and write
constantly about Amazon as the paradigmatic example of "the next generation
of computer applications." I think that you're a terrific competitor,
delivering a terrific service, and I don't think you need to use tools like
this patent to keep yourselves on top. You can win without it, and I firmly
believe that in the long run, it will do you more harm than good.
I realize that having come out so strongly behind this patent, it would
be very difficult for you to do an about-face and back off from it. However,
I urge you to do so, and would be glad to help you craft a PR strategy that
would make it a net win for you in terms of public perception. In fact, I'd
love to see this as part of a wider effort by Amazon to embrace and support
the open standards of the Web and the power of open source software, both of
which have been foundations of your success.
As I've suggested publically on more than one occasion, I believe that the
companies that have profited most from the web have an obligation to give
something back. This is more than a "thank you" to the developers who made
your success possible; it's also an act of self-interest, to keep the
I hope these comments have given you food for thought. I'd love to hear back
from you, and to find a way to work with you to support the open standards of
Jeff replied via email on January 27. While I don't have permission to quote
his message, I can give you the substance of it, namely that he shares my
concern for both customers and innovation, but that while he believes the
patent process can sometimes be abused, he believes that this is not the case
with Amazon's 1-Click patent.
Given this response, I've decided that I need to speak out on this issue.
While the Amazon 1-Click patent is far from the most obvious abuse of the
patent system, it is one that affects the competitive landscape of my own
business, and one where, as a publishing industry spokesperson, I most feel
obliged to make a statement.
What's more, since you sent in your question, the situation has gotten worse.
The patent office has also granted Amazon a patent on their Associates
program. They haven't yet tried to enforce this patent against their
competitors, but if what they've done with 1-Click is any sign of their
intentions, I imagine that it's only a matter of time unless their customers
and suppliers speak out about their reckless behavior.
I'm also publishing
"open letter to amazon" that I invite customers to sign. I hope to
give Amazon an idea of just how many of their customers share the feelings
that this patent is anti-competitive and that it is having a chilling effect
on the growth of e-commerce applications.
What's more, we've put together
a patent web site on the
O'Reilly Network for breaking news on this and other software
patent issues. We'll develop this site as the issue unfolds.
Those of you who want to review the actual Amazon 1-click
patent filing can obtain it from the IBM patent server via
http://www.delphion.com/. There are a number of other
Amazon e-commerce patents available there for your scrutiny.
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