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Simon Phipps's personal commentary

Solving the Patent Problem [java.net]

Glen Martin comments that:

To my mind, patents in software add no value, and really only serve to subject software development to the less than scrupulous (lawyers, that is).

and

It is starting to look to me as if the OSS world won't ever meet its real potential unless software patents go away. Since the non-OSS world has little incentive to change, it would seem to be up to OSS boosters to drive it.

Much to agree with in there, but in the current political climate both in the US and in WIPO I feel there's little hope of traction in undoing patent legislation, even with heros like Lawrence Lessig fighting the case.

What became apparent (to me at least) at F/OSS this week was the need for research into how to create mechanisms that protect open source projects against patents. In his evening keynote Richard Stallman suggested building an anti-patent 'poison pill' into the GPL such that any attempt to assert patent rights against a GPL-protected project would result in automatic loss of rights to use any GPL-protected software anywhere. One delegate noted, however, that such a provision would effectively prevent a company like IBM, with a history of patent suits, from using GPL software. Ironically, a company like Microsoft with no history to date of patent suits would be able to use GPL software without any problems!

As I suggested in my earlier posting, I think it's necessary to understand what is the real problem patents pose to open source and then address that problem. It seems to me that, to expand Benkler's definition, open source is commons-based, rapidly-iterative peer production. Patents delay or erode the commons, and disincent peers from involvement in rapid iteration. Fighting patent legislation is one way to address the commons, but a seperate mechanism such as use of foundations to own code as a haven against prosecution seems vital to address the iteration issue.

I'm not a lawyer, so have no training to construct the defences against patents. But it seems to me this is a vital research area, and I encourage the F/OSS academics to engage in it without delay.

posted at 3:37 PM (UK) | Comment? (0 so far) | links to this post | |

F/OSS on Patents [java.net]

Just sitting in the final session at F/OSS at Harvard, largely on software patents. The research, presented here by Jim Bessen (the paper is available online and Slashdot has a great summary), suggests that it's become cheaper and easier to get software patents over the last 20 years (overall and compared with other patents). The research finds "...software patents substitute for firm R&D rather than complement it." Increasingly, it seems, the innovation is happening elsewhere...

Several voices have suggested that the real key to open source is the practice of rapid incremental development by a distributed community. But patents are the big threat to open source authors as infringers are typically unwitting, easily traceable through the very tools that enable the process and liable for unlimited damages. So if anything open source is more vulnerable to patents as the very FUD about them could inhibit the rapidity of improvement.

Commercial firms protect themselves from patents by gather 'thickets' of them for negotiation, and it becomes an arms race. Open source can't generally play this deadly game of gathering 'thickets' of patents, so some other protection is essential. An earlier presentation by Siobhan O’Mahoney hinted at a partial solution for this, using a non-profit foundation to own the code and protect the author. But whatever the treatment, the illness is clearly dangerous and systemic.

posted at 5:25 PM (UK) | Comment? (0 so far) | links to this post | |

The Dog that Didn't Bark [java.net]

I really like the report on Corante about java.net but it raises for me the question of why none of the other sources I respect in the blogging community have even mentioned the launch of blogs and wikis on java.net, let alone come in with a critique (positive or negative). In particular, I've not seen anyone in the blogging A-list that I track with NetNewsWire mention or critique java.net, and the greatest omission of all was the lack of any comment on Slashdot (until June 13). What gives? Is there no interest in what Corante calls "the first large scale developer community to incorporate wikis and weblogs"?

posted at 7:39 PM (UK) | Comment? (0 so far) | links to this post | |

At F/OSS [java.net]

I am (unexpectedly) at the MIT/HBS Free/Open Source Software conference at Harvard. The first session included a paper comparing Apache, Mozilla and a commercial software project. The results suggested open source development does indeed deliver higher productivity levels and lower defect counts than closed team development. While I felt intuitively that this was the case, I'm pleased to see a growing research base supporting the fact.

All three papers also suggested that, regardless of the overall size of the community, most of the work was conducted by a core of participants which, as one delegate pointed out, tended to be of similar size to hunter/gatherer groups across human history. Much of the presentation activity is trying to model and understand effects which seem intuitively correct but lack logically coherent discussions.

But the one topic I'm not sure is really being explored is the phenomenon of commercial involvement in open source activities. All the discussions assume that all the participants are volunteers, but in communities like NetBeans.org and OpenOffice.org there are a large number of participants who are employed as professional engineers to participate in the community. I'll be watching today to see if this dimension gets some airtime.

posted at 7:03 PM (UK) | Comment? (0 so far) | links to this post | |