Some questions about the Defensive Patent License
Jason Schultz and Jennifer Urban of UC Berkeley School of Law have distributed a paper which provides an interesting analysis of the state of the patent system and its relationship to open development. In essence, they suggest that rather than avoiding the patent system, open development communities should instead engage with it, seeking to patent and benefit from inventions they create. The authors identify the barriers to this that they see operating now and propose a new cross-licensing agreement process which might breach some of these barriers. At the heart of the scheme is a new licence, the Defensive Patent License or DPL. While I would recommend reading the licence (it’s not l0ng) it’s fair to say that it broadly seeks to embody the following principles (from the paper):
1) Every DPL user (i.e. licensor or licensee) will forgo any offensive patent infringement actions against any other DPL user;
2) Subject to Condition 4, every DPL user will offer her entire current and future patent portfolio under the DPL;
3) Every DPL user will bind any successor-in-interest to any part of her patent portfolio to her obligations under the DPL; and
4) If a DPL user wishes to stop offering her patents under the DPL, she may do so but only with six months’ notice to existing DPL users and future parties. She must continue to grant, and may not revoke, any licenses that are in place before the end of the notice period. Once she stops offering the DPL, other DPL users are free to revoke their licenses to her at will.
So the deal here is that, if you opt into the scheme with all your patents (and you cannot opt in with any fewer) then you will enjoy a licence to utilise all the patents of all other members. In exchange you grant them licences to all your patents, and agree to make sure that even if you sell a patent on, you will try to make sure that it remains covered by the scheme. You can opt out of the scheme again provided you give everyone six months notice. On the face of it it seems like a good idea; as members join the benefits of membership increase exponentially, and a larger and larger island of technology becomes a venue for free competition on implementation within the group. Members remain free to litigate offensively against those outside the group, and consequently retain a market for separate paid licences. How this model addresses what the authors perceive as barriers within the community is too large a subject for summarisation here, but I would recommend reading the paper to anyone interested in the academic study of open communities and their motivations.
Given this model, I find myself with many questions in mind. Some of them are probably the result of my own misunderstanding, but I’d thought I’d note them down anyway.
What is an ‘offensive patent infringement action’?
The authors define it this way: “Offensive patent infringement actions are defined as actions that are not filed in direct response to a previously filed patent infringement suit involving the same parties.” This definition is important because it pins down a circumstance in which a scheme member might have their licence revoked – and licence revocation could get very ugly and expensive for an active tech company or project. So I would be keen to see what is and is not a ‘direct response’ more rigidly defined. For example, if a party is subject to informal threats related to patent infringement from another member of the scheme, are they prevented from seeking a declaratory judgement that they are not infringing? Construably this could be the ‘first link’ in a chain of actions and could therefore be classed as offensive under that definition. I would also like to know whether ‘involving the same parties’ means involving only those parties, or at least those parties. In the latter case a ‘defensive’ action could be used to attack other scheme members once an initial offensive action had been taken.
What about the transmission of obligations?
Point (3) seeks to fix the potential problem that patents might be lost to the scheme by changing hands. In the paper itself the authors respond to one putative criticism of this mechanism – that bankruptcy of a patent holding entity might result in a patent being used outside the terms of the scheme – by pointing out that the US bankruptcy code places a responsibility on recipients of patents to honour pre-existent licences. While I imagine this is true, it does bring up an issue: the ‘orphan’ patents that are licensed in this way going to be available to members who join after the transfer due to bankruptcy? Taking the licence at face value I would assume so, but some aspects of the description of the operation of the scheme in the paper give me pause. The authors describe a situation in which a new member is invited to indicate acceptance of the licence offers of pre-existent patents in the scheme by clicking a button:
She then receives access to the pages for every other DPL user with an option to accept any or all of their DPLs for their portfolios. One can also imagine an option to accept all known DPLs in a single click. The website then distributes an acknowledgment of all license offers and acceptances to the participating parties and records them in its internal database. The licenses take effect immediately.
This seems to be attempting to embody some degree of contractual communication of acceptance, something that free and open source licensing has traditionally been believed to not require to have effect. In the case of the scheme, it’s easy to see why this is beneficial; it gives greater formality to the legal relationships while alerting licensees to the patents available to them. However I wonder if a recipient of a patent from a bankruptcy would feel the need to honour any subsequent licences accepted in this way. I could see an argument that maintained that while pre-existent, accepted licences needed to persist, they had no responsibility to grant new ones in the way that the original bankrupt member had agreed. Either way, the simple model of ‘willing licensor+their portfolio’ will necessarily become fragmented in time through processes like bankruptcy, and the scheme will need robust methods for dealing with reluctant successor patent holders.
Isn’t six months a bit scary?
This is a simple one. Six months is a scarily short lead-time to engineer around an embodied patent in the case of its licence’s revocation. If I have a physical product in the marketplace in which I have embodied a DPL’s patent, how realistic is it to expect me to either withdraw it or negotiate a new, economically viable licence in that six months – particularly when the licensor knows how desperately I need it? How widely used would free and open source software be if the licences were not effectively perpetual and could be rolled up and taken away in six months?
What about Trolls?
The scheme seeks to foster patent peace between technology practitioners, and if widely joined it could perhaps do that. Unfortunately it does nothing to restrain non-practitioner patent holders – the so-called trolls. Trolls do not need defensive portfolios as they do nothing that might infringe anyone’s patent, and their business model makes restraining their offensive use of patents suicidal. So even if the scheme succeeds famously in attracting practitioner patent holders, it will leave a large area of risk untouched. Indeed it could be argued that by encouraging the shared use of patents within the scheme and their associated technologies, it communicates risk of infringement of a troll’s patents between members. If one of the scheme’s well-utilised patents was found to be invalid by reason of prior art in a troll’s patent, the troll would have a neat scheme-created list of potential targets for litigation.
While I do have questions, I think that the aims of the scheme are laudable and I do hope that it finds a means of continuation and growth. The web site associated with the licence and paper provides many ways to feed back and shape the initiative, and I’d recommend registering your views.
Jobs at OSS Watch – we’re looking for a community manager and a development manager
Do you have a passion for of free and open source software? Do you understand how open source communities work and do you enjoy working with people?
The University of Oxford hosts OSS Watch, an open source advisory service to the UK higher and Further Education sector. We assist in the use and development of open source solutions. We are currently looking for a Service/Community Manager and a Development Manager. An outline of the jobs are shown below, and the full description and instructions on how to apply are posted on the jobs website. Both posts are funded initially until 31st July 2013.
You can apply until noon (UK time) 2 July 2012, and interviews are scheduled for 12 and 13 July 2012. Feel free to get in touch if you have any questions.
For both roles, you will be a key part of an exciting project which is improving the methods of production of software in the UK academic sector. You should have relevant experience in an open and collaboratively developed open source project and must willing to undertake occasional travel to client sites and conference events.
Service and Community Manager
We are looking for a Service and Community Manager to lead a small team of specialists in delivering a national advisory service funded by JISC. For the community work, the main task is to encourage the sustainable adoption and development of open source software, where appropriate, in UK universities and colleges. The main focus of the role will be on community building to achieve longer-term sustainability for the projects and build links with wider open source communities. You will also lead the organisation of open innovation workshops and will present on community development and related open source topics at conferences and other events.
Development Manager
The Development Manager will lead our effort to actively support open development projects in UK institutions. We are looking for someone who will also actively educate the academic community about the more technical issues around free and open source software, helping projects proactively using the right tools and applying best practices of open development. OSS Watch encourages staff to spend an agreed amount of time on open source software development projects where they are compatible with the service’s remit.
API Copyrightability
In my previous post on what is and is not protected by copyright, I noted that the wide ranging legal battle between Oracle and Google over the Android mobile platform had yet to decide on an important issue – the copyrightability of APIs. Well, that issue is now settled, at least until the appeal; Judge Alsup in that case has ruled that – as a matter of law – the APIs in question in the Google-Oracle case are not protected by copyright in the US. His rationale for this decision has potentially a much wider scope. I would strongly recommend reading the judgement as linked above; it provides not only a good overview of what an API is (surprisingly), but it also provides a really interesting review of the history of the issue of software structure and its copyrightability in the US over the decades. Alsup’s rationale is essentially that grouped structures of function descriptions cannot be protected by copyright because they are primarily functional and not expressive; if the opposite conclusion were to be reached, API authors would enjoy a patent-like ownership of the functional structures they create:
In closing, it is important to step back and take in the breadth of Oracle’s claim. Of the 166 Java packages, 129 were not violated in any way. Of the 37 accused, 97 percent of the Android lines were new from Google and the remaining three percent were freely replicable under the merger and names doctrines. Oracle must resort, therefore, to claiming that it owns, by copyright, the exclusive right to any and all possible implementations of the taxonomy-like command structure for the 166 packages and/or any subpart thereof — even though it copyrighted only one implementation. To accept Oracle’s claim would be to allow anyone to copyright one version of code to carry out a system of commands and thereby bar all others from writing their own different versions to carry out all or part of the same commands. No holding has ever endorsed such a sweeping proposition.
This judgement obviously has serious repercussions for Oracle, whose entire set of claims have now been found to be unenforceable, but it also provides some useful clarity on the issue of where – in software – functional ideas solidify into expression.
Get started with research data management using open source applications
Researchers generate ever-increasing amounts of data when performing their research and they need to find new ways of managing this data properly. This process is accelerated by the research councils and other funders in the UK, who are increasingly requiring bids to indicate how they will manage the data that is part of the research that is to be funded. I attended the second day of the ‘roadshow’ organised by the Digital Curation Centre (DCC) in London last week, where Sarah Jones presented about the funders’ data policies. The DCC have an excellent concise overview of funders’ requirements, which shows that nearly all now expect policy stipulations regarding data management planning and sharing. Sarah showed that aspects that are important to nearly all funders are timely release of data, open data sharing wherever possible and provisions for longer-term preservation of the data.
The burden for much of this will be placed on the institutions, who need to have a clear data management policy in place, as well as the tools to support all the aspects of data management. The DCC is helping institutions with this, via the excellent resources on their websites, tools such as DMP Online to help them create data management plans, and by organising events such as the roadshow where experiences can be shared and best practices disseminated.
On the more technical level, there are a number of open source tools available that will allow departments and institutions to manage research data. HEFCE and JISC have funded a number of projects, that release their software as open source. A few examples are:
- DataStage is a secure personalized ‘local’ file management environment for use at the research group level
- DataBank is a scalable data repository designed for institutional deployment.
- VIDaaS (Virtual Infrastructure with Database as a Service) is a project of two halves. The ‘DaaS’ part will develop software that enables people to build, edit, search, and share databases online; the ‘VI’ part involves the development of an infrastructure enabling the DaaS to function within a cloud computing environment.
- BRISSkit will design a national shared service brokered by JANET to host, implement and deploy biomedical research database applications that support the management and integration of tissue samples with clinical data and electronic patient records.
There is an excellent opportunity for institutions and research department to start trialling these tools without the need to make large investments. And if the tool fits your use case, it is easy to get involved with the community and benefit from the opportunities that the open development approach offers. OSS Watch is here to help!
Between Thought and Expression
Computer programs are treated, for the purposes of copyright law, as literary works. As well as giving some legitimacy to the legion of people out there calling themselves Codepoet, this decision has the effect of making the division between idea and expression a key one in determining what is and is not ownable in a computer program. This is because it is a fundamental assumption in all doctrines of copyrightability that it is the specific expression that is protected, not the idea that underlies it. To take the example of a more standard literary work, it is a novel’s original arrangement of specific words on a page that is protected, not the events that make up its plot.
This division between idea and expression is slightly more complicated in the world of computer programs, however. Clearly the lines of code in a program’s source files are analagous to the words on a page in a novel, but what is a program’s ‘plot’? Is it the broad task that the program is written to achieve? How about the arrangement of code elements – say the way that the task is conceptualised as subroutines or objects? At what level of abstraction does a program pass from being an expression into an idea?
This question is an important one for anyone who is publishing code. While it’s easy to see that pasting someone else’s source code into your own program is likely to need the original author’s permission, it’s less clear whether borrowing someone else’s object model, data model or API definition is an infringing act. These questions have been being discussed both in the US and Europe recently as a result of a couple of high profile court cases.
In the US, Oracle and Google have been fighting over a range of intellectual property issues – both patent and copyright-related – for almost two years now. One key issue that remains unresolved at the time of writing is whether certain non-literal elements of the Java programming language are protected by copyright. This argument centres around what are essentially helpful code snippets that are provided to Java programmers by the creators of the language. These are arranged into named sets, with established conventions for calling them up and making use of them (APIs). The question at issue here is whether the naming of these sets and the conventions for making use of them is ownable.
In Europe, in a case covering similar though not identical ground, the European Court of Justice has ruled on an argument between SAS and WPL over the issue of whether a programming language and the structure of data files are ownable. The former question is closely adjacent to the Google-Oracle APIs issue: is a conceptual arrangement of useful items copyrightable? In this case the ECJ ruled that it is not, and drew heavily on the analogy with literature and natural language; books in English are ownable, but you can’t own English. On the issue of data files, on the other hand, the ECJ held that the structure of a data file is ownable as copyright as a part of the expression of a computer program. So here we have a real example of a concept which is not a literal expression but is still not sufficiently abstract to be an unprotected idea. (In the event this finding did not help the ‘owners’ of the data file format, as the act of infringement they were complaining about was legitimised by an exception in EU and UK law that permits certain acts in respect of computer programs if they are done for the purposes of facilitating interoperability.)
These issues may seem annoyingly abstract and inconsequential, but in fact they have deep significance for all software authors and consumers. While software is treated as a literary work in copyright law, its tendency to be more formally structured and complex than literature means that the division between idea and expression in it will tend to be hard to find. This in turn means that there is often a real lack of clarity on what aspects of a computer program can be legitimately reused by other software authors. This exposes the authors to risk, and means that we as consumers can find ourselves relying on software that infringes others rights and may be subject to unexpected licence fees or removal from the market. While not specifically an open source issue, it affects open source just as much as closed source. So the recent ECJ judgement and the forthcoming decision on API copyrightability in the Google-Oracle case are of real benefit to the IT community. Whatever the specifics of the decisions, their clarity will be useful.
The dominance of open source tools in Big Data
Most of the tools that are best suited for dealing with Big Data are open source. This provides the research community with a huge opportunity, because no investment in software licenses is needed. You just download the software and ‘get on with it’. The challenge, as became clear at the Eduserv symposium last week, is to find people with the right skills to apply these tools.
Without a doubt, Apache Hadoop that is the most important open source project in this space. It is amazing to see how fast the Apache Hadoop ecosystem is growing and how everyone is trying to jump on the bandwagon. Start-up companies like Cloudera and Hortonworks have no trouble finding venture capitalists willing to invest large sums of money. Similarly, nearly every major tech company is offering it, while other internet companies that deal with big data are using it (secretly or not). At the Eduserv symposium, EMC CTO Rob Anderson focused on the implication big data has for storage, and showed their Hadoop-based offering. Because the Apache licence allows you to use any Apache project in a closed-source implementation, EMC can sell their Hadoop distribution without needing to make that product open source.
There are big implications of the big data trend for the research community. Guy Coates of the Sanger institute showed how the amount of data they are managing is increasing rapidly. They are expecting this increase to continue, especially since the costs of human DNA sequencing is dropping dramatically. They expect it to drop to $1000 for a full scan within two years (excluding storage!). His main challenge was not the actual storage of the data, but the management of the data as researchers were analysing it. Sanger is using the open source tool iRODS, a community-driven project that originates from the Data Intensive Cyber Environments (DICE) research group in the DICE Center at the University of North Carolina.
Another open source project that featured prominently at the Eduserv symposium was Apache CouchDB. Simon Metson of Bristol University explained how NoSQL is the enabler of big data and new database systems that do not use the traditional relational database approach are better suited for these tasks. Open source software project