October 13, 2007 2 Comments
(A follow up to previous coverage)
As you may have guessed, this topic is being discussed heavily around the web. Mark Radcliffe points out that Open Source companies are likely becoming a more tempting target to patent trolls due to the stunning growth in the sector (keep in mind that Microsoft, Apple, et al. put up with this kind of thing all the time):
Although I and many attorneys in the open source industry have long been concerned about patent challenges to open source companies, this case appears to be the first by patent trolls against an open source licensor. The open source industry provides a tempting target because of its rapid growth. This morning, Eben Moglen at the Software Freedow Law Center Seminar on FOSS issues noted that Brad Bunnell of Microsoft joined Acacia on October 1 . According to news reports, Brad spent sixteen years at Microsoft at a number of positions which included General Manager, Intellectual Property Licensing. http://biz.yahoo.com/bw/071001/20071001005590.html?.v=1
Eben raises the intriguing question about whether these incidents are related. Given the time that it takes to prepare a patent lawsuit, Brad’s hiring probably did not effect the filing of this lawsuit. However the hiring may indicate the addition of a new business line for Acacia: suits against open source companies. Steve Ballmer’s recent comments about Red Hat’s obligation to pay Microsoft for alleged use of its patents makes this lawsuit and the timing of the move interesting.
Matt Asay points out a list of coincidences:
* One or more former Microsoft licensing execs join Acacia or one or its companies;
* Ballmer makes his most recent statement regarding Red Hat;
* Almost the same day, Red Hat (and presumbably Novell) receive notice of the alleged infringement from IP Innovation (Acacia);
* Before either company has a chance to consider the letter and respond, IP Innovation files its lawsuit in Texas;
* Novell changes all of its IP indemnification the same day (which it has named “Technology Assurance Program” as contrasted with Red Hat’s Open Source Assurance Program Novell apparently isn’t interested in assuring open source, just technology ;-);
* Novell’s new program notes a change in the Microsoft/Novell deal that covers GPLv3 code distributed by Novell for downstream recipients.
Hmm….I forget sometimes who is on which team, but it certainly seems like two sides have been conspiring on this, and I don’t mean IP Innovation and Microsoft (which is almost a given).
Stephen Walli (who was still at Microsoft when the SCO suit was launched) gives some advice that I couldn’t agree with more: Take a deep breath. Be calm. He continues:
The U.S. Supreme Court continues to involve itself in the broken patent system. The Linux Foundation and the Open Invention Network are both geared for this particular fight. I have confidence that the Groklaw community will step into the breach of reporting and investigation again. IBM, Intel, and HP have a vested interest in the outcome, and nobody plays IP games the way IBM does. Over the next few weeks, lawyers will come together behind the scenes from all the interested parties on the defending side. Hopefully egos won’t be too large, and a coherent plan of negotiation will emerge.
Some of the more interesting questions for me will be:
* Why Red Hat AND Novell?
* Why not Microsoft? (Acacia went after Apple who settled. Microsoft would seem to have deeper pockets than Red Hat or Novell. It would seem to be the more interesting business discussion.)
* If Microsoft is not involved, should they be? If Apple settled, and then this suit settles, Microsoft should know they’re next on the list. Or are they trusting IBM et al to win this one for them?
To quote one of my favourite lawyers in this space:
“If the F/OSS community wants to be in commercial space, community members will have to learn to deal calmly with IP litigation. The F/OSS production model will work where it makes sense, and it will not work where it doesn’t. It’s really just that simple. Particular claims in individual suits—even one against a flagship program such as the GNU/Linux OS—will not determine the fate of the community. Such cases present factual issues that will get resolved one way or another; they do not represent a crisis for F/OSS production as a whole. Norm entrepreneurial rhetoric that plays off such cases should be treated as entertainment. Enjoy it if you like it, take inspiration from it if you must, but don’t confuse it with the way things actually get done.”
I’m sure some former colleagues at Microsoft are excited. Mr. Smith and Mr. Ballmer most assuredly. But just as with the SCO Group litigation, there is no reason to celebrate. They shouldn’t confuse this with “the way things actually get done.” Pax.
I do find it interesting that Acacia went from Apple to Red Hat / Novell, when Microsoft surely would have been a much more compelling target from a business perspective. It becomes a simple case of follow the money from there. More information will come out of this in the coming weeks and months, so staying calm and focusing on what’s important is surely the correct course of action.