Category Archives: legal

Bill Gates, legal, Linux, Microsoft, open source, patents

Microsoft’s Change of Heart on Software Patents

I just read an interesting op-ed piece in the New York Times written by Timothy B. Lee about the evolution of Microsoft’s view on software patents:

WHAT a difference 16 years makes. Last month, the technology world was abuzz over an interview in Fortune magazine in which Bradford Smith, Microsoft’s general counsel, accused users and developers of various free software products of patent infringement and demanded royalties. Indeed, in recent years, Mr. Smith has argued that patents are essential to technological breakthroughs in software.

Microsoft sang a very different tune in 1991. In a memo to his senior executives, Bill Gates wrote, “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” Mr. Gates worried that “some large company will patent some obvious thing” and use the patent to “take as much of our profits as they want.” (Quote from Timothy B. Lee in the NYT)

Interesting, but not entirely unexpected, change of heart.

I also read the rest of the Bill Gates’ memo in addition to what was quoted by Lee. Here’s the entire patent section of the memo:

PATENTS: If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique. If we assume this company has no need of any of our patents then the have a 17-year right to take as much of our profits as they want. The solution to this is patent exchanges with large companies and patenting as much as we can. Amazingly we havn’t done any patent exchanges tha I am aware of. Amazingly we havn’t found a way to use our licensing position to avoid having our own customers cause patent problems for us. I know these aren’t simply problems but they deserve more effort by both Legal and other groups. For example we need to do a patent exchange with HP as part of our new relationship. In many application categories straighforward thinking ahead allows you to come up with patentable ideas. A recent paper from the League for Programming Freedom (available from the Legal department) explains some problems with the way patents are applied to software. (Quote from a Bill Gates Memo)

Microsoft is saying that there are “problems with the way patents are applied to software”, but the “solution to this is patent exchanges with large companies and patenting as much as we can.” In other words, Microsoft planned to patent as much as they could to avoid having other companies take advantage of them. It is interesting to see their current behavior toward the Linux and open source community in light of these 1991 views.

Our current patent system stifles innovation from smaller companies and organizations without large patent portfolios at their disposal (like many Linux and open source projects). The patent process is also expensive, thus rewarding large companies who can afford to have a staff of patent lawyers. I have not entirely decided whether software patents are a really bad idea in general (I suspect that they are). I do think that we need significant patent reform and better reviews of existing and proposed patents by industry experts who have the knowledge to determine whether or not a patent is obvious.

business models, GPL, legal, licensing, open source, second life, social software, web 2.0

Second Life Moves to Open Source

Second Life has just announced that the Second Life client has been released under an open source license, and they described their move to open source as “inevitable”:

“At Linden, we have always been strong advocates of the use of open standards and the advantages of using open source products. Though Second Life makes abundant use of non-standard technologies, our basic UDP protocol message system for example, we rely on open standards and open source implementations when appropriate and available. Since many of the components that will make up this network are not yet done, we are not publishing long white papers or RFCs at this time — instead, we are giving everyone what we have along with a goal of producing those open standards with the input and assistance of the community that has brought Second Life to where it is now.

Releasing the source now is our next invitation to the world to help build this global space for communication, business, and entertainment. We are eager to work with the community and businesses to further our vision of our space.” (Quote from the Second Life Blog)

I also found it interesting that Linden Lab specified the GNU GPL version 2, rather than releasing it under the GPL and future versions … another company hedging its bets on the still under development GPL v3.

I think this is a great move for Linden Lab, and an astute business decision. By releasing the client software under open source, residents can modify their client experience, while Linden Lab continues to provide the server side code, which is where they make their revenue. Linden Lab is providing a more flexible environment for users, which should translate to additional users, and at the same time, they continue to have the revenue stream required to keep Second Life in business.

GPL, legal, licensing, mysql, open source

MySQL Hedges Bets on GPL

MySQL “kind of sort of (not really) changes its license model”. Until recently, MySQL was licensed under GPLv2 or later, but they have changed their license to be GPLv2 only. This may sound like a small change, but it is a significant (and smart change). Anyone licensed under GPLv2 or later will automatically convert to the GPLv3 when it is released. This gives MySQL the option to decide whether (or not) to move to the GPLv3, instead of automatically converting upon release of GPLv3. MySQL will have the opportunity to review the final version of the GPLv3 license and make an informed decision about which license makes the most sense for MySQL’s business needs.

Not every company (or project / organization) can change their license at will:

MySQL owns the copyright to its database code so can change the license any time it likes (and indeed offer the software under dual licenses). While the company is not ruling out a change to GPL v3 once it is completed, it is hedging its bets in case it does not like the results.” (Quote from Matthew Aslett on Computer Business Review Online)

GPL, legal, Linux, Microsoft, novell, open source, osdl, stuart cohen

OSDL Shake-up: Reduces Staff by 1/3 and Stuart Cohen Leaves

The Open Source Development Labs (OSDL) in Beaverton, OR has just eliminated 9 technical and administrative positions at the labs. A staff of 19 people remain at OSDL including Tom Hanrahan in engineering, Diane Peters for legal work, Linus Torvalds, and Andrew Morton.

ZDnet writes that “CEO Stuart Cohen resigned to pursue opportunities with higher-level open-source software,” and that “Cohen’s resignation as CEO was coincidental and independent of the other changes at OSDL”. According to ComputerWorld, Cohen will be working with Portland and Seattle based venture capital firm OVP Venture Partners. Mike Temple will be moving the COO position into the CEO role.

The now smaller OSDL will focus on the following:

“The lab’s board concluded that a modified mission was appropriate because Linux is now mainstream, and companies have become adept on their own at some of the collaborative work OSDL was founded to oversee, Temple said Monday. The group is funded by IBM, Hewlett-Packard, Novell, Intel and several other computing companies.

OSDL’s middleman role–connecting customer requirements, computing-company resources and developers–remains unchanged, Temple said. “We will be a catalyst among those three, to bring them together, solve problems and create the code,” Temple said.

Funding freed up through the layoffs is set to go toward legal work, which the group’s members have found valuable, Temple added. The group either will contract with legal professionals or hire a staff attorney, he said.

In technical matters, the organization will stop focusing on projects defining broad categories of Linux–earlier examples including efforts for high-end servers, telecommunications gear, mobile phones and desktop computers. Instead, engineering work will emphasize narrower efforts to find areas where new software needs to be written.” (Quote from Zdnet)


“The OSDL is shifting its resources to focus on four key areas: continuing to provide a safe haven for key developers, sponsoring the work of Torvalds and others; providing increased legal support for Linux and open source to account for licensing and patent issues that are increasing in complexity (this expansion will complement current OSDL initiatives such as the Patent Commons, Osapa.org and the Linux Legal Defense Fund); supporting ongoing regional activities such as the Japanese Linux Symposium; and fostering closer collaboration among community developers, OSDL members and users to produce more code to advance open-source projects, OSDL officials said in a statement.” (Quote from eWeek)

Here is my take on the situation. I do not buy the “coincidence” argument. I find it very hard to believe that the CEO of any organization would just decide, completely of his own accord, to leave during a change of this magnitude. With a staff reduction of this relative size combined with a new strategic direction, Cohen’s leaving OSDL would not have been a coincidence. There are a few possibilities (caveat: this is pure speculation):

  • First, the board of directors may have “suggested” that Cohen leave due to any number of potential issues: dissatisfaction with his performance, lack of confidence in his ability to lead the organization under the new mission, …

  • Second, Cohen may not have wanted to stay under the new mission for any number of reasons: lack of agreement with the strategic change and new mission, expecting the job to be less exciting under the new mission and wanting to find greener pastures, …

Despite my skepticism about Cohen’s “coincidental” leaving, I do think that the new mission will be good for OSDL and for Linux. When OSDL was first formed, Linux as an open source project was less mature, and fewer contributors to the Linux kernel were sponsored by large companies who paid their salaries. As a result, the contributions tended to be made in areas of personal interest, which may or may not have been the areas needed to make Linux successful in large deployments of mission critical systems. OSDL helped to coordinate efforts and provide testing labs where Linux could be tested on large clustered systems not generally available to most people. Now, with companies like IBM and Intel doing more work toward sponsoring developers and helping with testing, OSDL’s original mission has become less important.

The focus on legal matters makes sense. With the proliferation of lawsuits, concerns over software patents, licensing concerns and other legal matters becoming top of mind, having an organization to focus on open source legal issues could be a great benefit. 2007 could be an interesting year for open source legal matters: the GPL is undergoing a revision, and the Microsoft / Novell agreements related to patents could be clarified. Many open source projects are run by small groups of individuals or small companies, and it would be great to have OSDL as a legal resource.

antitrust, GPL, legal, open source

The GPL and Antitrust Law

A U.S. court has found that open source software provided free of charge under the GPL does not violate antitrust laws … or as Matt Asay says “Duh!”. An excerpt from Evan Brown’s Internet Cases blog provides a nice overview:

The U.S. Court of Appeals for the Seventh Circuit has issued an opinion in which Judge Easterbrook declares, “[t]he GPL and open-source have nothing to fear from the antitrust laws.” The case is called Wallace v. IBM., No. 06-2454. [Download a copy of the opinion.] Internet Cases covered the lower court’s decision from last December here.

Plaintiff Wallace filed an antitrust suit against IBM, Red Hat and Novell, arguing that those companies had conspired to eliminate competition in the operating system market by making Linux available at an “unbeatable” price (free) under the General Public License (“GPL”). The U.S. District Court for the Southern District of Indiana dismissed the case, finding the plaintiff had suffered no antitrust injury. The Seventh Circuit affirmed.