Patent pools offer open source a new incentive--and a new source of power

by Andy Oram

It's been talked about for years, and now there are well-endowed and
well-researched organizations claiming to offer open source software
some protection from patent lawsuits. The very announcement of these
efforts--even before they have a chance to prove successful--are an
historical watershed for open source and free software. For the first
time you get back something tangible for open-sourcing. And this leads
to another key change in the terrain: it now becomes critical how
"open source" is defined, and who has the power to define it.

Background



The two patent pool projects concerned here--open source's shining
knights in armor--are the
Patent Commons Project
and the
Open Invention Network.
The basic idea is to use the patent system the way companies and
inventors have used it from the start: to cross-license patents and
use patents defensively so they aren't sued out of existence.



As in a fencing match between good players, patent holders rarely hit
each other point-on. Rather, they make threats and counter-threats.
But that requires a great deal of money and legal help, both to
acquire patents and to use them in court.



Now developers, corporations, and organizations sympathetic to open
source software can take out patents and donate them to one of the patent
pools. The pools are backed by large companies that provide the
resources for defending the patents. They pledge never to use the
patents against open-source projects. But when anyone threatens an
open-source project, the patent pool is brought into play to defend
the project against the threat. This is the way the patent system
works (or has up to now).


An
overview
at Linux Weekly News covers the developments (it may not be available
yet to the general public when this blog first comes out). Some have

doubted the value of the pools
,
but putting a formal system in place should have long-run effects that
can't be achieved through current ad-hoc promises by IBM and others.



Free software developers have been waiting years to try this out. But
as always, major initiatives raise major questions.

Suddenly open source has new value



Until now, there was no prize for doing open source; you didn't get
back anything in return. Oh, of course, you got the right to use
other people's innovations in open source, and that's probably the
biggest incentive for open-sourcing software. But it's just a tit for
tat. There was no particular power to open-sourcing.



Now it's different. Open source your software, and you get
protection. Individual developers or small software houses that always
had to worry about patent lawsuits can now worry a bit less--but only
if they play the open-source game.



This is powerful. Managers who always asked "What do we get for
open-sourcing besides good will?" now have a concrete answer: there
will be a lot of legal muscle at their disposal.



There's power behind open source. And that means there's something new
to fight over.

What is open source--and who gets to say?



If large legal resources are available to anyone open-sourcing his or
her software, it suddenly becomes critical to define open source
precisely. Does Microsoft's Shared Source initiative receive patent
protection? Do we use the
Open Source Definition
managed by the
Open Source Institute,
the
definition of free software
by the
Free Software Foundation,
or both, or some totally new definition created the sponsors
of the patent pools?




Amazingly, I have not been able to find anywhere--on the web sites of
the Patent Commons Project and the Open Invention Network or among any
of the commentators--a definition of open source. These towering legal
initiatives have not publicized the key legal foundation of their
work, which is what they're protecting.



There have been many arguments over definitions of free and open
source software, largely because projects using different licenses
find it difficult to combine their software. Some of the arguments are
less well-intentioned. People are finding new ways to game the system
all the time (one of the reasons for the current update of the GPL to
3.0). Now that there's a new and valuable resource to fight over,
definitions become central to a potential battle over a significant resource.



Are there enough licenses already? Could the community just select a
few and tie the definition of open source to those licenses forever?
That won't work; times and technology change, so someone will always
have to revisit the definition. That someone will have a lot of power.



I'm sure the current ambiguity will be resolved. (In fact, I might
just have missed the resolution.) It's important for the sponsors of
the patent pools to be fair and not to play favorites, but to be
precise and explicit--and alert to possible misuse of their
generosity.