My final FOSS Patents post: thanks again for your interest in my views

As I already indicated in the previous post, after all those years I have decided to move on in various ways. It's the year of new horizons for me.

This post is my final one on FOSS Patents. There is a possibility that others than me will maintain and contribute to this blog in the future. It will remain available as an archive for a transitional period.

I never monetized FOSS Patents. Not a single ad was sold. Not a single subscription. It started as a private, personal thing, and that's how my involvement with it is ending now. The content wasn't monetized either. Whenever I received serious requests for reuse, I authorized them, such as by the Library of Congress (LoC). By authorizing the LoC more than a decade ago to archive all FOSS Patents post, I already dedicated the content to the general public. And let's face it: the kind of content that you find here is rather short-lived in practical terms, though an archive may satisfy researchers' curiosity.

With the exception that I can't make decisions for third parties whose material I incorporated (which is easily identifiable as such, given that I properly quoted external sources and made the sources of images clear), you can use my FOSS Patents writings under the Creative Commons BY-ND license. Beyond that, I will consider even derivative works fair use so long as they don't create any misconceptions as to what my views really are--and what they are not.

I don't want to make this a big thing here. I'm neither celebrating nor mourning. This is a rational and well-considered step. Times change (for instance. I'm not available for consulting work anymore). I hope you enjoyed reading my posts as much as I enjoyed writing them, and I apologize for sometimes having gone off-topic.

I'm now, starting in a few days, going to be writing a book on the Microsoft-ActivisionBlizzard merger saga. I will do so in a beautiful place with excellent weather and in a quiet environment. That book project--my first one in decades--is going to essentially require my full attention until it's done. Given that I played Activision games in the 1980s, worked for Blizzard in the 1990s, opposed and thereby delayed a merger in the late 2000s, and played Candy Crush in the 2010s, I just want to write that book. And it's not going to be put under a Creative Commons license, by the way.

While my focus on that project will be next to 100%, I may sometimes voice my views on certain other topics elsewhere. There are many formats out there.

Once again, thanks for everything!

Gradually refocusing FOSS Patents on patents WHILE exploring alternatives for antitrust analysis and commentary

A flurry of antitrust news during the first third of this month had the effect that temporarily 80% of FOSS Patents' posts had nothing to do with patents. I received some actions that made me realize I had strayed too far from what used to be this blog's focus for the better part of the 12+ years it's been around. As I promised nine days ago, here's my new editorial (and social media) policy:

• FOSS Patents blog:

  • Back to the roots: for the next next six months (March-August 2023), there will be no more than 10 non-patent posts in any given calendar month.

  • Starting September 2023, that monthly limit goes down to five.

  • This is a one-way street: no exceptions, no ifs, no buts. If anything, there'll be a further reduction.

• Antitrust commentary:

  • My passion for competition topics, which has recently earned me a prestigious nomination, is undiminished. I just don't want to disregard that a large of the audience of the FOSS Patents blog is patent-focused.

  • I may launch a dedicated antitrust blog, which in a way would be a logical next step, though I can't promise (much less announce) anything yet.

  • I plan to contribute to Concurrences at least twice this year (vs. once in 2022).

  • From time to time I may publish LinkedIn articles on antitrust topics (LinkedIn articles are structurally much like blog posts).

• Social media:

  • The patent law community has clearly chosen LinkedIn (and is not really active on Twitter anymore).

I wish to thank you all for your interest in my analysis and commentary. It is of the utmost importance to me to cater to the specific needs of two different--though partly overlapping--audiences. Please stay tuned!

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Today is the 10th anniversary of the launch of FOSS Patents--and here's a Microsoft patent threat from 2004 no one reported before

Ten years ago to the day, the first FOSS Patents blog post went live. (In the table of contents on the right side you can also find an entry for January 2010, but that one was added subsequently--and backdated so the contact form would be listed behind all of the actual content.)

When I talk to readers at courthouses or on other occasions, I realize most people don't even know what the "FOSS" stands for. That means Free and Open Source Software, a "politically and philosophically correct" term that describes both persuasions of the same movement. At the outset, the idea was indeed to focus on patent threats and assertions against open-source programs such as Linux. I always viewed the Open Invention Network (OIN) very skeptically as it appeared to part of the problem to a several times greater extent than it was part of the solution. And I was aware of some threats no one had reported on at the time. In fact, there is one that I hadn't written about in the more than 16 years since it was made, but with so much water under the bridge by now--and with Microsoft being a member in good standing of the open-source community these days--I'm going to reveal it on this occasion:

In early 2004, Microsoft's patent licensing department contacted MySQL AB, the originally Finnish-Swedish and, at that time, heavily Americanized open-sourced database company (whose CEO I was advising at the time). What Linux was in comparison to Windows, MySQL was to Oracle, Microsoft SQL Server, and IBM Db2. The term isn't used much anymore, but back then the "LAMP Stack" meant Linux, the Apache webserver, the MySQL database, and one of the P languages (mostly PHP, with a few people using Perl, or even Python): an open-source technology stack powering more websites than any other comparable configuration. MySQL had risen to popularity alongside Linux. It was a symbiotic relationship. Microsoft, of course, favored Windows + Internet Information Server + SQL Server + Visual Studio (C# or Visual Basic).

What Microsoft--and again, the Microsoft of then is not the Microsoft of now when it comes to these types of issues--told MySQL (a company that had received tens of millions of dollars of venture funding while Microsoft already had roughly 10,000 times greater resources) was that they claimed to hold a patent that covered functionality at the very core of the MySQL database engine. From a software development perspective, a database engine is a relatively monolithic (as opposed to modular) thing. If someone asserted a patent against the basic architecture of your engine, it could mean that you have to almost start all over. You'd lose years.

Microsoft was clear about its demand: a 2% royalty on MySQL's (tiny) sales. Two things were not clear, however: whether Microsoft had an agenda to actually start a patent war against open source and, particularly, the LAMP Stack, so that an initial royalty agreement would not have been an amicable resolution of an IP issue but could have been the beginning of the end for MySQL and LAMP; and Microsoft declined to disclose that mysterious killer patent.

The concern I just outlined--that Microsoft would wage an all-out patent war against open source--was not merely paranoia. A Microsoft exec in charge of corporate strategy at the time had told some Silicon Valley venture investors a year or two before that "if it comes to worst with open source, [they'd] just use some of [their] patents." So what was presented as a shakedown might have been a concealed attempt at a shutdown.

Microsoft was the only company at the time to have an issue with Linux; the rest of the industry viewed Linux as a chance of liberation from Microsoft dominance. When it came to MySQL, however, two other major patent holders--IBM and Oracle--potentially had just the same strategic motivation to attack the successful startup, as those companies were pro-Linux, but faced a disruptive-innovation threat from MySQL. While that would have been a gigantic violation of antitrust law, one of MySQL's founders even feared that Microsoft, IBM and Oracle might have agreed to launch near-simultaneous patent attacks on them. And they had only a very few patents (from a smaller startup they had acquired)--likely of zero retaliatory value.

MySQL didn't accede to Microsoft's demand, and Microsoft never stepped up the pressure or sued. Part of the reason may very well have been (and in my view, most likely has been) that there were two things going on in the EU that Microsoft had to be cautious about. The European Commission going after Microsoft for its conduct in some other conduct; and the EU's legislative bodies (Council and Parliament) were working on a Directive for the Patentability of Computer-Implemented Inventions, i.e., software patents directive. Concerns by the open-source community played an important role in the political debate.

At some point MySQL was seriously considering making Microsoft's patent royalty demand public. We had already prepared a press release, and it was going to be centered around an open letter to EU policy-makers urging them to abolish software patents in Europe (though that wouldn't have solved the problem for MySQL anywhere else, and it actually generated most of its revenues in the U.S. anyway). We didn't escalate the conflict, and ultimately that was better for everyone involved.

Oddly, about five years later Microsoft actually tried to defend MySQL's independence. Oracle was in the process of acquiring Sun Microsystems, which had acquired MySQL the previous year for $1 billion. While Sun wanted MySQL's business to grow, there were reasons to assume Oracle simply wanted to control it so as to eliminate a competitive threat. Microsoft and SAP (even though mostly concerned about Java in the beginning) were the two large complainants, and MySQL's founder, Michael "Monty" Widenius, was the third complainant, with help from me. So MySQL's founder and I ended up in an alliance with Redmond about five years after we had thought Microsoft would potentially use patents to destroy it.

If not for that old Microsoft patent threat against MySQL--16 years under wraps--, I might never have gotten involved with patent policy in the first place. And I had it very much in mind when I launched FOSS Patents. At that time, I already knew that Microsoft wasn't necessarily a foe (as the Oracle-Sun merger review showed). In fact, I felt that some FOSS people, maybe because they received funding from the likes of IBM and Oracle, weren't being fair: they turned a blind eye to some other large tech companies' (especially their financial backers') questionable patent dealings and pro-software-patent lobbying, but even when Microsoft had good intentions in specific areas, they looked at whatever Microsoft did or announced like Sherlock Holmes with a magnifier glass and, if all else failed, simply made up concerns that weren't warranted. Part of the FOSS Patents agenda was to focus more on companies whose patent abuse got less attention, but "deserved" more. The first big story here was the second post ever: on an IBM threat against an open-source mainframe emulator.

This blog's focus evolved dynamically. In fact, just about four weeks before I launched FOSS Patents, Apple had filed its first patent infringement complaint against an Android device maker (HTC). Android became the most heavily-attacked piece of open-source software that year as Oracle sued Google (a case that later became only a copyright dispute as Oracle's patents failed in court), Microsoft sued Motorola, Motorola sued Apple (which countersued using largely the same patents as against HTC), and the following year Apple sued Samsung.

Of the roughly 2,300 FOSS Patents posts I've written to date (also, there were a few guests posts), roughly 63% (1,456 posts) went live in the years 2011-2013, the three years in which the "smartphone patent wars" were raging on a very large scale. By 2014 they had already subsided, and in 2014 various disputes came to a partial or complete end.

With those Android companies countersuing, my litigation reporting simply had a mobile focus (and occasionally even gaming consoles). If I had anticipated that, I'd have named the blog "Mobile Patents" or "Phone Patents."

Actually, "FRAND Patents" would have made even more sense. I already took a clear position against injunctions over standard-essential patents in 2010. And a few years later, a Research In Motion/BlackBerry lawyer accused me, after a Mannheim trial, of having "devalued" SEPs and that companies were cutting back on their standardization activities (obviously not true, as we all know now with the benefit of 2020 hindsight).

More recently, this blog has almost been an "automotive" blog, only because car makers are currently the ones that SEP holders like Nokia primarily seek to prey on.

So there's probably no point in ever renaming a blog, much less when it is as well-known as this one. I'm very grateful for having so many loyal readers, and a number of highly important people in the industry as well as in the judiciary, executive and (to a lesser degree) legislative branches of government. I really am.

There's one thing I had envisioned for the 10th anniversary that I haven't found the time for: a redesign. This blog still uses the "Blogspot" platform's original blog layout. Blogspot became Google's "Blogger" service, and undoubtedly supports more fashionable layouts. However, since I have manually entered and edited all the HTML tags here from the outset, it's a bit risky to switch to a newer layout (I ran a test and the result looked awkward)--I or someone I'd pay for it might have to go over 2,000+ posts and make countless manual adjustments. Nevertheless, it may happen later this year--certainly sometime before the potential 20th anniversary :-)

There were times when I was seriously considering discontinuing this blog, or handing it to some other organization, such as an IP-focused publishing company. But in recent years there have been some really exciting developments--and I've found a way to keep blogging while continuing to run an app development company (I'll have a new game to announce this summer).

Some of you encouraged me to keep going--even some who have rather different positions on SEPs or on patent policy in general. Thanks for that, too. I'll keep sharing my honest observations and opinions with all of you for quite some more time!

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Hypocritical Red Hat hopes to leverage patents to cement its Linux market leadership: Microsoft deal

This commentary on the Microsoft-Red Hat partnership is a back-to-the-roots post for me. This blog started as a Free and Open Source Software Patents blog--hence the FOSS Patents name-- and only because of all the (ultimately not too meritorious, let alone impactful) patent attacks on Android, it effectively became a smartphone patent wars blog (but by then it was too late to rename it without losing traffic).

While I don't mean to endorse everything Dr. Roy Schestowitz has written about Microsoft on his TechRights blog (and certainly not everything he's ever written about me), I agree with him that media reports on the Microsoft-Red Hat deal could have dug deeper, especially into the patent aspects of that deal. I furthermore agree that Red Hat is apparently happy about making it easier for Microsoft to impose a patent tax on Linux and that Red Hat has simply sold out FOSS values. According to TechRights, Red Hat executives tried to dissuade Dr. Schestowitz from his vocal criticism of the deal, but failed.

I've been saying for years that Red Hat is utterly hypocritical when it comes to patents. It has a history of feeding patent trolls and fooling the open source community. There is, to put it mildly, no assurance that all of its related dealings actually comply with the GPL.

Sometimes I like the positions Red Hat takes in its amicus curiae briefs on patent issues, but more than once I got the impression that those filings were written primarily in an effort to create the appearance of defending the FOSS cause in this context. It was just window dressing.

The fact of the matter is that Red Hat seeks to be a major beneficiary of the software patents mess.

Red Hat is large enough by now that it can just make the trolls go away by paying them off, giving them funds and legitimacy to go after other companies, including other open source companies.

Red Hat has also accumulated a certain amount of patents over the years, which puts it into a better position than individual open source developers and smaller companies in this space to retaliate in the event of a strategic attack by a competitor.

Red Hat now wants to tell Linux users that the way to be protected with respect to patents is to use Red Hat Linux. "Reduce your exposure, buy from us." That is a way of seeking to benefit from software patents.

All of this is no surprise when considering that Red Hat has always just been about taking advantage of something. In terms of its product and licensing policies, Apple may be the very opposite of a "free software" company (no matter what it may do with respect to its Swift programming language). But you have to grant them one thing: they're not fooling anybody about their philosophy. They never even tried. They don't "openwash" anything. They don't pretend to be a charity. They want to make money, more than any company before them. But one could not create products more independently and single-handedly than Apple. And all by themselves they have brought about a revolution that the likes of Nokia and Microsoft would never have created.

By contrast, Red Hat's business model is parasitic (though some like to euphemistically describe it as symbiotic). While Red Hat has been a major contributor to Linux, Red Hat became what it is not because of what it did but because of what Linus Torvalds and others had done. And Red Hat is not nearly as honest as Apple. "Not nearly" may even be an understatement.

The question of whether covenants not to sue over patents (which appears to be the structure of the Microsoft-Red Hat deal and would be consistent with a Microsoft Android patent agreement that was filed publicly last year) violate the GPL v2 has not been addressed by a court of law yet. I would actually like to see someone sue Red Hat for breach of the GPL and obtain clarification, but even the Free Software Foundation and its satellite organizations are not as principled as they pretend to be. They never compromise their values per se, but they have their strategic priorities when it comes to where and how forcefully to defend them. It will be interesting to see their reaction to the Microsoft-Red Hat announcement--not in terms of what they say but in terms of what, if anything, they will do. I guess they won't do anything. Why? Red Hat is a donor, Red Hat is a code contributor, the deal offers benefits for "GNU/Linux" as they call it...

I want to give Simon Phipps (with whom I've often disagreed) credit for distinguishing between the positive and not so positive ramifications of this partnership from an open source point of view. The Open Source Initiative is an organization on whose board Simon Phipps serves with, among others, a Red Hat lawyer.

Without the Red Hat connection, Simon Phipps would presumably have criticized Red Hat clearly as opposed to just making it sound like Microsoft should do more. He says Microsoft should relinquish its patent rights because that's how he defines "love" for Linux. However, he doesn't talk about what Red Hat could have done. Red Hat could have challenged any Microsoft patents that allegedly infringe Linux: in court (declaratory judgment actions) and through reexamination requests. That course of action would have done free and open source software a greater service than a deal.

I, too, have a (past) Red Hat connection, but it's none that I would be proud of. Over the decades I've done work for a variety of companies, and Red Hat is the only one I wish I had never worked with. They supported my NoSoftwarePatents campaign in late 2004 and early 2005, probably because they just thought a sponsorship was useful for currying favor with the FOSS community. They were far larger than MySQL AB but contributed a far smaller amount. In terms of commitment relative to company size, MySQL AB was like 100 times more committed to the cause. But the worst part was that shortly before the European Parliament's decisive vote on a software patentability bill, Red Hat tried to keep the legislative proposal alive. The Red Hat lawyer who did so later responded to that, and he never denied the simple truth that he wanted the legislative process to continue.

On this blog I announced, years ago, working relationships with Microsoft and Oracle. Both are a thing of the past. But I would never say that I wasn't proud of them.

The Microsoft I worked with as a consultant was not the Microsoft under Bill Gates that made artificial scarcity of software a strategic objective and got into serious antitrust troubles. I found Microsoft to be no better or worse than the vast majority of companies in this industry. I overestimated the merit of their allegation that Android infringed on many of their patents, but I corrected that assessment more than a year ago based on the results of numerous Android-related patent lawsuits and, after a second-class settlement between Microsoft and Google/Motorola, declared Google the strategic winner. The number one priority of my work for Microsoft was about giving FRAND meaning, a cause I continue to promote (see today's post on Apple v. Ericsson). In that regard, Microsoft was the victim of abusive tactics by Motorola. Sure, that was just Motorola's retaliation for Microsoft's patent assertions against Android, but two wrongs don't make a right (as Microsoft accurately said in the FRAND context).

Oracle has been a longstanding advocate of reasonableness with respect to standard-essential patents, and of open (and ideally free-of-charge) standards. I'm happy to have helped them in that regard, too. As for their Google copyright lawsuit, everyone can see on this blog that I've always taken the same pro-interface-copyright positions. I took them before (going back to a conference in the European Parliament in 2004) and after working against Oracle's acquisition of Sun Microsystems, and before and after doing work for Oracle. I view Google's position on API copyrights as a wholesale attack on the copyright protection of all computer software. Google doesn't call for the abolition of software copyright, but there appears to be no limit to the collateral damage it's willing to inflict to software copyright only to avoid paying Oracle for using Java in Android.

I am now in the most independent position to comment on IP, antitrust and industry policy issues ever. I'll continue to be consistent, just like I'll continue to draw the necessary conclusions from new intelligence (as I did when all those anti-Android patent assertions turned out to have no merit in most cases and negligible merit in the remaining cases). That's why I can just say what I think about the Microsoft-Red Hat deal. I think it's great for Azure, and I like Azure, though my app development company is using it only to a small extent and will use a different cloud service provider for most purposes. The free and open source software community should, however, be opposed to this and shouldn't trust Red Hat with respect to patents. They weren't trustworthy with respect to the European legislative process on software patents; they weren't trustworthy with respect to various settlements with patent trolls; and they aren't trustworthy now in connection with what appears to be a covenant not to sue, which is a license by any other name, with Microsoft, when the alternative would have been to bring a declaratory judgment action that says "Linux does not infringe a single valid Microsoft patent claim and we're now going to prove it."

It's one thing to be a Linux parasite. It's another to be a Trojan horse. And the worst option is to be both at the same time.

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Here's a redacted version of Microsoft's Android/Chrome patent license agreement with Samsung

The Microsoft-Samsung contract dispute in the Southern District of New York over the implications of Microsoft's acquisition of Nokia's wireless device business for the parties' 2011 Android/Chrome patent license agreement has already exceeded my expectations concerning transparency. Three weeks ago this case brought to light that Samsung forked over more than a billion dollars in patent royalties on its Android/Chrome devices to Microsoft in the 12-month period from July 2012 to June 2013. Last week, a Samsung motion to compel arbitration explained certain interdependencies between the parties' Android/Chrome patent license agreement and a second contract, a Windows- and Windows Phone-related business collaboration agreement.

Here comes the latest and greatest revelation, which in certain respects is of even greater interest than the billion-dollar figure: yesterday, Samsung's counsel in the New York case had to file a public redacted version of the declaration supporting Samsung's motion for referral to arbitration, including the key exhibits--the patent license agreement and the business collaboration agreement.

The following PDF document contains the declaration and the redacted versions of the two contracts (this post continues below the document):

Redacted version of Microsoft's 2011 contracts with Samsung.pdf by Florian Mueller

These contracts are interesting from different angles. One of them is Samsung's motion to compel arbitration. At first sight (and I will have to look at it more closely and think about it some more) it does appear that the two contracts, both of which were concluded within a couple of months of each other, are indeed closely connected. The business collaboration agreement was signed first but already referred to credits (based on Samsung's success with Windows devices) against Android/Chrome-related license fees. Technically they both have the same date: July 1, 2011.

The aspect I found most interesting is all about exclusions. While the license agreement is not limited to a particular list of patents, it's no total-portfolio license either. There are two key limitations: "Excluded Technologies" and "Excluded Software" (any software licensed under an "Excluded License").

As for excluded technologies, Microsoft did not license to Samsung any of its patents relating to

1. Kinect-style gesture-based functionality (this exclusion has nothing to do with touchscreen gesture control, as the contract clarifies),

2. Virtual Reality, and

3. "Information Worker Software": a software or a service "designed or offered as a replacement" of Microsoft's office applications, with OpenOffice and LibreOffice being specifically mentioned as replacements for one or more Office components.

The definition of "Excluded License" includes any version of the GPL, LGPL, Mozilla Public License, and Common Public License, or similar licenses with a copyleft (share-alike) feature. This exclusion, however, relates only to "Other Samsung Products" and not to Samsung's Android and Chrome devices, where the only excluded license is the GPLv3. In other words, the license agreement does cover the GPLv2 parts of Android, such as the GNU operating system and the Linux kernel. This might spark some debate in Free Software circles. It also reminds me of what I said four years ago when there was a debate raging in Europe over "open standards" and the compatibility of free and open source software with FRAND (fair, reasonable and non-discriminatory) licensing terms. I said that patent royalties are paid on free and open source software, including GPLv2 software such as Linux, all the time, also by such companies as Red Hat. The now-public terms of the Microsoft-Samsung patent license agreement are another example.

Besides the actual exclusions I mentioned, there's also a mechanism in the contract that can lead to the exclusion of a category of devices. There are special rules in the contract for a "Deferred Android Device," defined as "an Android/Chrome Device that (a) does not have voice communication as a primary functionality, (b) has web browsing as a primary functionality and (c) has a display screen no larger than 6.25 inches across its diagonal." For such devices, the contract requires the parties to take certain steps for the purpose of agreeing on a license fee on such a device, but if the parties couldn't agree on a fee, then such devices would just not be covered by the license agreement.

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European Commission looking into competition-chilling effects of Android licensing practices

Yesterday the Financial Times, the most influential newspaper in EU circles, reported on a leaked document showing that the European Commission's competition enforcement division has sent out a reasonably detailedquestionnaire to "device makers and mobile operators", and the 82 questions indicate that a recently-lodged complaint by industry players including Nokia, Microsoft and Oracle over Google's Android business model and licensing practices has led to preliminary investigations. At this stage it's not a given that there will be a full-blown, formal inquiry. And even when formal investigations start, they don't always result in antitrust charges. It's too early for a guilty verdict, but I am convinced that the European Commission is right to take this issue seriously.

After the filing of the complaint became known, certain Google-aligned critics of the initiative primarily made the following two points:

• The complainants are Google rivals.

• Android is open source.

The first point is completely irrelevant: in this context, only merits matter, and motives don't. Obviously companies that depend on Google in commercial terms are not going to bring a complaint against it, but Google's own partners could ultimately benefit from whatever comes out of this process. The second point -- open source -- is a distortion, but to the extent it holds truth, this is just one of various considerations in a competition context and not a definitive answer. In this post Id like to quickly share a few thoughts about this.

The accurate characterization of the licensing situation for Android's software code is not "open source", but "mixed source". There are some key closed-source components, and Google requires device makers to distribute them if they want to use the Google logo and, especially, the little green robot logo, and it will give them those apps (such as the Google Play app store client) only if they accept Google's terms. And it's not just about the code: for commercial reasons most device makers also license the Android trademark. The Android license most device maker take is a mixed-IP license, and the software part of the license it's a mixed-source offering.

The Skyhook-Google litigation brought to light hundreds of pages of Google-internal dccuments that show how tightly the search engine company controls its mobile operating system and ecosystem especially through its arbitrary approach to "compatibility", which one internal email says Google using as a "club to make [device makers] do what [Google] want[s]".

There's a fundamental difference between Free and Open Source Software (FOSS) philosophy and competition theory. FOSS is all about the theoretical freedom of end users to inspect and modify code, and to use and redistribute not only the original version but also the modified one, while competition theory is about the commercial realities in a given market. You can be "free" from a FOSS point of view to modify and use a codebase, but you can still be constrained i practical, commercial terms due to customer expectations. You can have freedom, but will people buy what you build?

Such constraints are not a binary question like being free or in jail in a Monopoly game. Different players will be constrained to different degrees if they serve different markets and/or pursue different business models. The fact that Amazon uses large parts of Android without a license from Google doesn't mean that the same would work for Samsung or HTC; and companies focusing on the Chinese market are in a different position than those who generate most of their sales in the U.S. and Europe (even in China there's profound concern over Google's heavy-handedness with respect to Android). If something works for some companies under special circumstances, it doesn't necessarily work for most of the market. But the functioning of the overall market is what competition enforcers care about.

Competition is all about choice. Customers get the greatest benefit if different business models co-exist and compete. I have been defending open source interests for some time, but I wouldn't want to live in a world in which open source is the only type of business model that works because certain kinds of innovation aren't financially viable on open source terms.

It's a fallacy to take a short-term perspective and not worry about an antitrust complaint alleging that the market leader provides its platform on a "sub-cost" basis. Sure, today we'll all save money if someone gives something away for free. But if there are strings attached, we may all ultimately pay a greater price. We'll be locked in, and some innovation that would enhance our lives won't happen further down the road. Antitrust law is there to prevent this from happening.

The European Commission has previously recognized that "open source" must not be beyond the reach of competition enforcement. Its in-depth investigation of Oracle's acquisition of MySQL (as part of Sun Microsystems) delayed the closing of that transaction by about five months. I was a vcocal opponent of the deal. In a guest post I wrote for the Brussels-based BlogActiv.eu platform I reached the following conclusion:

Given the increasing importance of "free" and "freemium" business models, there can be no doubt that the related case-law will continue to be developed over the coming years and decades. The rule of law must be adjusted to these new realities, not surrender in their face.

Values persist; methods evolve.

Google's Android strategy is such a new reality involving a "free" business model.

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Software Freedom Law Center effectively blesses Microsoft's Android and Linux patent license deals

After many years of fundamentalist opposition to patent licensing it appears that Free Software advocates have become more pragmatic and now, at long last, tend to appreciate the benefits of patent license agreements and recognize what they usually denied in "open standards" policy debates around the world: that FRAND licensing terms for patents that read on Free and Open Source Software (FOSS) can actually contribute to the freedom of software distributors and users.

The Software Freedom Law Center (SFLC) is run by Professor Eben Moglen, Richard Stallman's co-author of the GPLv3, the most anti-patent FOSS license. SFLC provides legal advice and defines its mission as "helping [FOSS] projects reach their long-term goals safely and efficiently so hackers can concentrate on making great software". In a response to Open Source Initiative (OSI) chief Simon Phipps's criticism that Google's proposed VP8 patent license is overly restrictive by FOSS standards, SFLC's Senior Staff Counsel Aaron Williamson writes:

"Because the patent license does not restrict those freedoms, but rather affords some new, limited protections to users and developers within the field of use, it improves on the current situation. Without this license, the patent holders would be in a position to threaten those users and developers as well as others. [...] [U]ntil software patents no longer threaten FOSS, we will look for every opportunity to preserve community development from their destructive effects. The VP8 cross-license provides such an opportunity, in an area of particularly active patenting."

This is, in fact, a ringing endorsement of Microsoft's patent license agreements with Android and Linux device makers (note that Android includes Linux, which is distributed under the Free Software Foundation's GPL license). Last month ZTE became the 20th Android device maker known to have taken a royalty-bearing Android patent license from Microsoft, and Microsoft previously announced license deals involving non-Android variants of Linux (examples: Amazon, Brother, Casio, Kyocera, LG, Samsung).

The logic of the SFLC's defense of Google's proposed VP8 patent license agreement as being "compatible with FOSS licensing" also applies perfectly to Microsoft's Android and Linux patent license deals:

• Just like the proposed VP8 patent license is a separate license from the software copyright license, Microsoft's Android and Linux patent license agreements are separate from the copyright licenses governing the open source distribution of Android/Linux.

• Just like the licensees under Google's proposed VP8 license, Microsoft's licensees are "not [...] required to pass on any restrictions limiting users' rights to copy, modify, and redistribute free programs" (if Samsung et al. imposed any such restrictions, we would know). Instead, users "have the same rights as they would if the [device makers] had never accepted the patent license".

• Just like video codecs are "an area of particularly active patenting", so are smartphones (which according to patent aggregator RPX potentially infringe a quarter million patents). In fact, smartphones are an area of far more active patenting because they include video codecs but also numerous other technologies in fields of active patenting.

• Just like the proposed VP8 license, Microsoft's Android and Linux patent license agreements "do[] not restrict [FOSS] freedoms, but rather afford[] some new, limited protections to users and developers within the field of use", which in the SFLC's opinion "improves on the current situation".

Of course, the terms of Microsoft's agreements with Android/Linux device makers aren't known -- nor are the terms of Google's agreement with 11 MPEG LA patent licensors. All that we can see from the outside is what the respective licensees do or don't do. Do they impose restrictions? No. Do end users have to pay separately? No, someone takes care of this for them. Does this mean third parties can do anything they want without possibly needing a new license from the relevant patent holders? No. Nor are they free to "do anything" under the VP8 patent license agreement.

With a vocal part of the Free Software ecosystem agreeing that patent licenses are preferable over litigation, and confirming that patent licenses wich don't result in a modification of software copyright licenses actually "afford[] some new, limited protections to users and developers within the field of use", licensing is more popular than ever. Once Google's Motorola Mobility also takes such a patent license, it will be difficult to come up with anyone else who could lend a meaningful endorsement to this commercial practice (which is also accepted in all other fields of technology).

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Google's FRAND-zero patent license for VP8 threatens to divide Web and FOSS communities

Google is already promoting the VP9 video codec, which may very well raise new patent issues, while pushing for adoption of VP8 as an Internet standard. But the patent license it has drafted for VP8 and just published doesn't meet the requirements of the Open Source Initiative's definition of open source, says the President of the OSI's Board of Directors, Simon Phipps, in a blog post. According to Mr. Phipps, the draft license "shows signs of unfamiliarity with the tenets of software freedom". The OSI can't speak for the Free Software Foundation, of course, but the two organizations share many values and the FSF's emphasis of software freedom ("[t]he issue is not about price") entails even stricter requirements for acceptable license terms. Simply put, if your proposal doesn't please Simon Phipps, know that Richard Stallman ("RMS") is harder to please.

Historically, the World Wide Web Consortium (W3C) has applied its royalty-free (RF) licensing requirements in ways that ensured compatibility of HTML-related essential patent licenses with the philosophies of Free and Open Source Software (FOSS) organizations, particularly the FSF and the OSI. The Web movement and the FOSS movement have succeeded symbiotically and in tandem: FOSS powers large parts of the Web and drove its adoption, while the Web has allowed FOSS to thrive and contributed greatly to its popularity. If Google wants the W3C to consider its proposed VP8 patent license an acceptable W3C RF license, it effectively asks the W3C to part ways with the FSF and the OSI, after approximately two decades of close and fruitful collaboration. This is utterly divisive.

Shortly after the announcement of an MPEG LA-Google license deal relating to VP8 I was confused about Google's intentions to comply with the W3C patent policy when I saw a Google employee link to a web page that involved FRAND licensing commitments when he said they were planning to comply with the W3C's patent policy. Now that Google's proposal has been published, the answer is that Google's proposed VP8 patent license is not a permissive RF license but a typical FRAND-zero (or, synonymously, "RAND-zero") license. Zero license fees to be paid by licensees (though Google presumably paid or pays MPEG LA) -- but reasonable and non-discriminatory terms (field-of-use restrictions, reciprocity) are imposed and, which Mr. Phipps considers the most significant issue with the proposal, "gaining benefit from the agreement requires individual execution of the license agreement".

The final two sentences of the OSI President's blog post declares Google the loser and VP8's rivals the winning camp:

"This document seems to me to be an effective outcome for those in MPEG-LA's patent-holder community who want to see VP8 disrupted. It has provoked an autoimmune response that must have Google's enemies smiling wickedly."

I don't want to speculate about the intentions of the 11 originally-unnamed, meanwhile-disclosed companies that contributed patents to the MPEG LA-Google deal, or of the MPEG LA pool firm. Frankly, it doesn't matter what company A or company B wants to achieve in this context. At least for now, Google's own license grant under Section 3 of that proposed agreement raises the same issues that Mr. Phipps criticizes with respect to the other patents involved -- Google isn't being more generous than the MPEG LA group in those respects. At any rate, conspiracy theories aren't even needed when simple business logic can explain everything. If a company believes that video codecs should be available on affordable terms, but that intellectual property holders should be compensated somehow, then it can be Google's best friend and will nevertheless attach certain conditions to a license grant. Such conditions can be monetary and non-monetary. The financial part has been resolved. While I doubt that the patent holders gave Google a freebie (considering that they don't even do this in connection with H.264, the standard they promote), Google can apparently afford those royalties without having to charge end users. There's major strategic value for Google to gain in controlling an Internet standard, as non-MPEG LA-contributor Nokia's comments on its decision to withhold a license implied. So Google picks up the bill. But the non-monetary terms shine through its proposed "VP8 Patent Cross-license Agreement".

Mr. Phipps says it's probably "unworkable" for the FOSS community, and at the very least unacceptable, that a licensee must identify itself and sign up to get a license, including downstream users since there's no right to sublicense. The FOSS approach is that someone just grants you a license and the downstream is automatically licensed, too, so you can share freely without any bureaucracy or loss of data privacy involved for anyone. But let's think about the modus operandi of those third-party patent holders, wholly apart from any theories of world domination or destruction. They want a reciprocal license (Section 5 of the proposed VP8 license). That's why Google calls this a "cross-license". It would be foolish for them to make their VP8-essential patents available when a beneficiary of their license grant can withhold a license. But they must have a reasonable degree of legal certainty that they can use the other party's back-licensing obligation as a defense to infringement claims. And that's why they need a formal cross-license agreement in place. Otherwise the licensee could later claim that it never consented to that license grant.

Google itself is a good example -- "good" only in terms of suitability, though bad in terms of behavior -- of why reciprocal-licensing commitments must be formalized. Courts in three different countries have already found Google to fail to honor grant-back obligations vis-à-vis Microsoft -- two of them formally ruled on this (England and Wales High Court, Mannheim Regional Court; both in connection with ActiveSync), and the third one (the United States District Court for the Western District of Washington) did not formally adjudge the issue because Google itself (only its Motorola Mobility subsidiary) was not a party to the relevant case, but nonetheless stated that Microsoft was an intended third-party beneficiary of the Google-MPEG LA agreement concerning H.264. And in those cases, Google had identified itself and formally signed license agreements, but it still disputed the applicability of those terms. Now imagine what would happen if someone with Google's mentality, which a U.S. judge described as "what's mine is mine and what's yours is negotiable" , refused to honor a grant-back obligation and claimed that there wasn't even an enforceable agreement in place... especially in jurisdictions that don't even recognize the concept of third-party beneficiaries to an agreement.

As for field-of-use restrictions, Mr. Phipps criticizes that the license doesn't cover you "[i]f you're writing any multipurpose code or if the way you're dealing with VP8 varies somewhat from the normal format -- perhaps you've added capabilities". Again, let me remind you that Google's own license grant under the proposed agreement comes with the same restrictions. Google itself apparently doesn't want people to modify VP8. It wants to control it. Just the way it controls Android through its arbitrarily-applied compatibility definition. Even if Google ultimately agreed with Mr. Phipps and allowed modifications with respect to its own patents, it would still have to convince those third-party patent holders to grant an equally permissive license. But in that case, someone could use patents that also read on, for example, H.264 and call it a modification of a licensed VP8 codec. Just like Mr. Phipps considers certain aspects of the proposed license "unworkable" for open source, so would it be unworkable for patent holders who generally license their patents on commercial terms to grant a license without any field-of-use restriction (and to an unidentifiable, unlimited number of beneficiaries).

The OSI President hopes that Google will improve this license agreement. But whether it can is another question. It can probably make improvements with respect to its own patents, and I believe that's what it should do at a minimum. This would affect its ability to monetize Motorola Mobility's H.264 declared-essential patents, but those have been found to have very little commercial value anyway. At least Google would show that it respects the FOSS philosophy.

Finally I'd like to talk about what the terms of the proposed license say about the need Google saw to take a license from those 11 MPEG LA contributors. After the announcement of the license deal some people argued that Google merely wanted to avoid litigation but that the agreement didn't constitute an admission of the very third-party patent infringement issues Google had denied for a long time. In other words, they said Google was paying for peace of mind, not for essential intellectual property.

It's true that sometimes license deals are struck even though the licensee is convinced of the merits of its case. That's the nuisance-value business model of certain patent trolls: they'll sue you over meritless claims and offer a license at much less than the cost of a proper defense (which is usually not recoverable in the United States). However, I believe that when all the parties to an agreement are not patent trolls but (as Judge Robart described Google in the MPEG LA H.264 context) "sophisticated, substantial technology firm[s]", then I believe there must be a strong presumption that a license deal doesn't just involve bogus claims. And that presumption is further strengthened if a licensee insisted over the years that certain claims had no merit.

Granted, a presumption, even a very strong one, still isn't proof. One needs to know the actual terms of an agreement to have clarity. None of them were announced two months ago. It's just clear that whatever Google pays is enough that Google can just absorb the costs for the downstream. The amount of money involved could be more, or even much more, than what is needed to prove that Google took those infringement allegations seriously, but if Google pays for it silently (because it can afford it), we won't know. Now at least some of the non-monetary terms are clear -- or they will be clear with definitive certainty if Google, despite criticism from Mr. Phipps and others who will agree with him (or even go beyond his criticism), can't offer a license to those third-party patents on permissive terms. The non-monetary terms demonstrate that Google took those infringement allegations seriously. Otherwise it wouldn't have drafted a license that threatens to divide the Web and FOSS communities, which in turn would have major impact on Google's own open source reputation. The non-monetary price Google is willing to pay here is so substantial that I believe it would have chosen to defend itself in court against any infringement claims (which it could have done proactively through declaratory judgment actions) if it had truly thought that all those infringement allegations were bogus, as it would have had all of us believe.

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Google's Android faces a serious Linux copyright issue (potentially bigger than its Java problem)

Intellectual property issues continue to cloud Google's mobile operating system. More than a dozen patent suits over Android are already underway. In one of them, Oracle additionally claims that Android infringes on large amounts of copyrighted Java code. And now there is grave concern over the legality of a central element of its architecture: the library that connects Android and its applications with the underlying Linux kernel.

Google copied 2.5 megabytes of code from more than 700 Linux kernel header files with a homemade program that drops source code comments and some other elements, and daringly claims (in a notice at the start of each generated file) that the extracted material constitutes "no copyrightable information".

It is much more likely that Google is wrong and this is, instead, a very serious violation of the GPL, the open source license under which Linux is published.

The GPL's copyleft nature requires all derivative works of a GPL'd program to be made available on the same terms. Google, however, very intentionally publishes Android as a multi-license potpourri of

• GPL'd software (the Linux kernel),

• permissively-licensed open source software (programs under open source licenses such as the Apache Software License or BSD/MIT licenses, which don't come with copyleft), such as the Dalvik virtual machine (which is at the heart of Oracle's lawsuit), and

• closed-source programs.

Google's "no copyrightable material" claim, which plays a central role in enabling this potpourri, is at best questionable. If Google is proven wrong, pretty much that entire software stack -- and also many popular third-party closed-source components such as the Angry Birds game and the Adobe Flash Player -- would actually have to be published under the GPL. In some cases, such as Dalvik, that would be hard to do for technical and licensing reasons, but in any case, a fully GPL'd Android would completely run counter to Google's Android strategy. Everyone would be free to use, modify and redistribute all of the affected software.

As a result, there would be no more revenue opportunity for the developers of the affected applications, and the makers of Android-based devices would lose their ability to differentiate their products through proprietary add-ons. Whatever software they publish would become available to their competitors on GPL terms. Prices and margins would inevitably come down.

To eliminate the risk of a collapse of the Android ecosystem and navigate around copyleft, the misappropriated Linux code would have to be replaced. The only real viable alternative is a library called glibc (GNU C library). That library is the industry standard and is used by Android’s major mobile Linux competitors, MeeGo and WebOS.

It wouldn’t be easy, though. Due to architectural differences between Bionic and glibc, thousands of Android components would have to be rewritten and rebuilt by Google and third parties. In some cases that could prove very difficult and time-consuming. There would also be significant compatibility issues with legacy versions of Android. Painful as it may be, there's no legally safe alternative that would shield Android from the implications of GPL copyleft.

Let me now

• explain why Google's denial of copyright is unlikely to hold water in court (at least in the US),

• describe the wide-ranging implications this hazardous approach -- which is either downright illegal or at least irresponsibly risky -- could have for Android device makers and application developers, and

• look more closely into what Google should do to fix this problem -- sooner rather than later.

Copyright is more resilient than Google thinks

Google openly admits that it wanted to "keep [the] GPL out of user-space" (userspace is whatever runs on top of Linux). You can find that statement on page 36 of this official Android presentation (PDF). So the Android development team came up with a library named Bionic, which contains a set of Linux kernel header files. Each of them starts with the following notice:

"This header was automatically generated from a Linux kernel header of the same name, to make information necessary for userspace to call into the kernel available to libc. It contains only constants, structures, and macros generated from the original header, and thus, contains no copyrightable information."

Note that the text mentions libc, which is a different library than glibc. It's BSD-licensed. Bionic is based on libc, and the header files with the above notice are added to Bionic.

The above notice is Google's way to say that the GPL doesn't affect Android because copyleft legally depends on copyright to be enforceable.

Having looked at many of those files, I don't think Google is right. There are potentially copyrightable elements in those files, such as inline functions, and even a collection of individually non-copyrightable elements can as a whole be protected by copyright.

Linus Torvalds himself has clearly rejected the idea of using the original Linux kernel headers in programs that aren't licensed under the GPL. In a posting to the official Linux kernel mailing list, he made the following unequivocal statements:

"In short: you do _NOT_ have the right to use a kernel header file (or any other part of the kernel sources), unless that use results in a GPL'd program."

"So you can run the kernel and create non-GPL'd programs [...]
BUT YOU CAN NOT USE THE KERNEL HEADER FILES TO CREATE NON-GPL'D BINARIES.
Comprende?"

That statement was made in 2003 and looks abundantly clear. I don't think it was based on the assumption that cutting out source code comments and some functions, with the subtlety of a chain saw, would ever be sufficient to circumvent the GPL. If this served its purpose, the GPL would be reduced to absurdity, resulting in proprietary forks and extensions of Linux and other GPL'd software such as MySQL.

Neither Linus nor I are lawyers. However, two high-profile US copyright experts -- an academic and a practitioner -- have also expressed doubts about Google's claims.

Professor Raymond Nimmer stated on his blog that "[t]he Linux core header files [...] are almost certainly copyrighted" and while he points out that he hasn't examined the facts, he finds a removal of "the expressive features involved in the structure of the header files [...] difficult to achieve since the goal was to borrow the effectiveness of the Linux system at least in part."

But the presence of expressive features would make the output of the script copyrightable, and consequently it would have to be published under the GPL.
On the Huffington Post I saw a post by Edward Naughton, a prominent IP litigator. The article is entitled "Google's Android Contains Legal Landmines for Developers and Device Manufacturers" and links to a much more detailed legal analysis, in which he describes Google's approach to the Linux kernel headers as "unusually audacious" and sees it as part and parcel of Google's overall questionable approach to software reuse in Android:

"Google's position is a bold assault on copyright protection for software and source code. There are cases, to be sure, that have permitted some copying of very small snippets of code when that is necessary to achieve interoperability. [...] Those cases do not provide much support for Google's argument that copyright law allows it to copy entire source code files, and even less for its suggestion that entire APIs [application programming interfaces] are not copyrightable."

In summary, Naughton argues that Google is very likely violating the GPL with Bionic because it incorrectly assumed it can simply "clean" the Linux headers of copyrightable information and repurpose them as it wants. On a "micro" (or individual file) level, he explains that most legal experts recognize that header files can contain copyrightable material. He points out that some, if not many, of the Linux headers that Google used in Bionic do indeed contain copyrightable material and that despite Google's claim to the contrary, it did not (and probably cannot) fully remove that material. As a result -- he concludes -- there are very likely files in Bionic that are still subject to the GPLv2.

He also makes an argument at the "macro" level based on the fact that, under US copyright law, API files are copyrightable. He argues that the overall collection of over 700 headers would likely qualify for copyright protection as a whole based on their "complex overarching structure." That would, therefore, preclude Google's ability to take those files as a group and strip them of their GPLv2 license.

Naughton's argument regarding the Bionic headers is straightforward, and I recommend reading it in full because I believe it explains very well what Google has done in a technical and legal sense. While I am not a copyright lawyer, I think the argument is compelling, and bears examining by those who are looking to use Android commercially.

In light of what experts like Nimmer and Naughton say, at the very least, I don't think anyone in the Android ecosystem can rely on Google's "no copyrightable information" claim. For a platform like Android, on which so many products depend, there has to be legal certainty. Anything less wouldn't do.

Widespread risk and far-reaching implications

The header file issue described herein affects many thousands of files (it pervades the Android codebase), and there are thousands of contributors to the Linux kernel -- independent programmers as well as companies -- who could sue Google and other companies in the Android ecosystem, alleging a violation of the GPL.

Litigants could have all sorts of motivations, be it the defense of software freedom, hopes of lucrative settlements, or competitive conflicts with Google, certain device makers, or particular application developers. Someone might act next month, next year, or later on.

If a court of law finds that the Bionic library indeed contains copyrightable GPL'd software, the distribution of all software compiled against Bionic -- and of devices containing such software -- will have to stop until there is full compliance with the GPL.

Bionic is at the heart, not at the periphery, of the Android architecture. Thousands of Android software components depend on it. I have discussed this with a Linux programmer I trust and he generated an automated analysis for me that I have uploaded to Scribd and Crocodoc. The document contains a table that shows Android components that have a so-called file dependency on Bionic, meaning they can't run without Bionic. It shows which particular parts of Bionic are used, and how many times. That table has 1,276 pages and more than 27,000 rows, and isn't even complete because only the open source components of Android were analyzed. In the event of a court ordering an injunction due to GPL infringement, the distribution of Android could not resume until each and every one of those rows -- and similar dependencies in files not yet examined -- has been properly addressed.

In terms of third-party applications, the more powerful and sophisticated they are, the more likely they are to be written in C or C++, and, therefore, the more likely they are to use Bionic. When device makers add their own components (for example, Motorola adds a program named Motoblur on top of Android), they will in most cases use C or C++ as the programming language, and consequently the Bionic libary.

Major third-party apps like Angry Birds and the Adobe Flash Player also appear to be written in C or C++.

The only realistic way to fix the problem: replace Bionic with glibc

Theoretically -- but not practically -- Google could try to solve the problem by giving up on its mixed-source strategy in favor of a GPL-only approach. Proponents of free software would be very happy about that. In fact, some of them have already started the ambitious IcedRobot project to build a GPL-only Android fork. But the price for Google to pay for this would be prohibitive.

For many components of Android, Google owns the copyrights, so it could relicense them under the GPL. However, for some very essential code Google doesn't have that option. In particular, its Dalvik virtual machine includes code from the Apache Harmony project. The Apache license and the GPL are inherently incompatible. Without that virtual machine, Google couldn't make most Android apps run. It would therefore have to replace the Harmony code with something already available or potentially relicensable under the GPL. This might take too long.

Even if Google -- hypothetically speaking -- managed to put all of the essential code under the GPL, it would thereby abandon the commercial strategy it has been pursuing so far, at least to a very large extent. On the current basis, Google uses proprietary licensing terms for closed source apps such as Google Earth -- in addition to its control over the Android trademark -- to control what device makers do. If those components had to be GPL'd, what Google would be left with to control the ecosystem would basically come down to the Android trademark.

Device makers would, as I explained further above, find themselves unable to differentiate their products through proprietary add-ons. They might invest a lot of money in extensions like Motorola's Motoblur only to find their competitors -- such as low-cost manufacturers from China -- building such code into competing products on free software terms. That's the death of differentiation.

Developers of applications using Bionic would only be able to charge (via the Android Market) those customers who don't know what rights they have under the GPL. All others would find ways to download and install those apps on GPL terms, i.e., free of charge.

In view of all of that, I think the only viable option will be for Google to recognize its error with Bionic and to replace it as soon as possible with glibc (GNU C library). That library is licensed under the LGPL ("Lesser GPL"), which has the effect that applications can access the Linux kernel without necessarily being subjected to copyleft if certain criteria are fulfilled.

Using glibc is the industry-standard approach, and it is the approach used by those in the open source world who are trying to "play by the rules." As I said before, even Google's major mobile Linux competitors use glibc. I have found documents that prove this: a MeeGo technical overview, a webOS license information document (Palm was acquired by HP), and a blog post by a sr. webOS developer relations engineer. In fact, Google's decision to forego glibc is one of the reasons Android is considered a Linux fork rather than a true Linux implementation.

However, it's apparent that even the LGPL'd glibc is too much of a copyleft risk from Google's point of view, so Google decided to build Bionic in the dubious way I described herein, essentially going its own way and thumbing its nose at the industry convention.

But replacing all references to Bionic with references to glibc throughout the entire Android codebase would be a daunting task. There wouldn't be the licensing issue Google would face if it wanted to put Dalvik under the GPL, but probably a large number of manual edits would be needed in many of those countless Android files making use of Bionic. Some files might just recompile right away against glibc, but I doubt that all of them would. I understand that there are important architectural differences.

This replacement would have to take place not only on Google's part but also be required of all developers of Android add-ons and applications written in C/C++, and by now a lot of such software has been developed by a large number of companies. Moreover, even if Google could resolve these issues going forward, there would still be problems with products running legacy versions of Android. Nonetheless, Google needs to do something because the sooner Google gets its act together, the more likely it is to pre-empt GPL enforcement by any Linux kernel copyright holder.

I'm sure Google would rather spend the same resources on the development of new features for future Android versions. That's what the ecosystem -- of which I'm actually a part, as a user -- would also like to see happen. But what must be done must be done. Continuing on the current, highly hazardous basis is not a viable option as far as I can see.

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FOSS, focus, philosophy: setting the record straight

Yesterday, in a report on my visualization of Apple's patent disputes with HTC and Motorola, Fortune.CNN.com made the following reference to the title of this blog:

"FOSS, by the way, stands for Free and Open Source Software, which may suggest a bias on Mueller's part. If so, we've never detected it in any of his reports."

In other words, my analysis doesn't come across as "FOSSy". It's true that I try hard not to be ideological about the intellectual property issues affecting the high tech industry. I'm always grateful for recognition of that effort, in public and in private.

But I can't deny that I often find myself misunderstood in different ways. On one end of the spectrum, there are a few who believe that this is an extension of the NoSoftwarePatents campaign I used to run years ago. On the other end, there's a certain number of people (greater than the first group) who misperceive or mischaracterize my activities as an attempt to speak on behalf of the open source community at large as an "astroturfer", or worse than that, suspect a divisive agenda. None of that is true.

Not in the name of open source

Most importantly, let me make it very clear -- right upfront -- that I never claimed or implied to be (or to be eligible as) an open source community leader or spokesman. Until I say otherwise, I don't have a mandate to represent anyone but myself.

I'm not trying to create a movement or subcommunity, nor the appearance of one. When some speculate about whether "the community follows" me, I can only shake my head because that's not my objective (it was a goal during the NoSoftwarePatents campaign, but not now). If that were the objective, I would have to do many things differently.

I just try to create unique, interesting, relevant and timely content, and to be thought-provoking. This blog gets read by lots of professionals and quoted in major media, so it delivers something others don't. That is, however, separate from knowing very well that on some important issues my views are not shared by a majority of FOSS community members. However, I believe that an increasing number of people will be interested in that perspective even if it isn't necessarily their own.

As a matter of principle, I never want to pretend to be something that I'm not, whether it generates publicity or support in some respects or negative associations in others. So I'll say it again, loud and clear: this blog is not an organ of the free and open source software community.

Holistic, in-depth, rapid and at times irreverent analysis

In an effort to counter misperceptions concerning my role, I updated the profile box (right-hand column), now introducing myself as "an award-winning intellectual property activist with 25 years of software industry expertise spanning across different market segments (games, education, productivity and infrastructure software), diverse business models (proprietary software, free and open source software, advertising- and subscription-based online services) and a variety of technical and commercial areas of responsibility."

Compared to many other blogs commenting on similar topics, I try to offer a particularly holistic perspective taking the technical, commercial, political and legal aspects of these issues into consideration -- and to provide understandable explanations.

Besides that, I often produce my analysis quicker than many others, and I dare to contradict or criticize persons and organizations whom many others revere unconditionally.

FOSS as a competitive force and business model rather than a philosophy

Some misunderstood my use of the term "FOSS" as a statement of strict adherence to Richard Stallman's free software values. Actually, the only reason for which I chose it was to recognize what RMS and his followers achieved. Saying "FOSS" instead of just "open source" is more efficient than placing "GNU" in front of "Linux".

I've been in this industry for 25 years, most of the time in closed source (such as when I marketed some Blizzard Entertainment games in Central Europe). For three years (2001-2004) I advised MySQL's CEO. It was a part-time capacity (about three days per month). I was also a small shareholder until the sale to Sun in 2008.

My NoSoftwarePatents campaign received most of its support from open source people and companies, and open source juries nominated it for awards. But when I gave speeches during that campaign I pointed out that my own software development was closed-source (.NET-based, in fact). The campaign website listed nine "dangers" due to software patents. The patent threat to "Linux & Open Source" was the first item, but there were eight others that weren't specifically related to open source.

In late 2009 and early 2010 I fought hard against Oracle's acquisition of MySQL. I worked with Michael 'Monty' Widenius, MySQL's founder, and his company Monty Program Ab on that effort. At the time I was, for sure, an open source advocate. But it was a project, an episode.

To me, open source is important primarily as a competitive force. In a position paper I wrote as part of my work for Monty Program, I made the case for open source as a competitive factor. I didn't claim that it's an inherently superior production model or the only ethically acceptable one.

I created my Apple vs. Android diagrams with OpenOffice Draw, and my current mobile phone is an Android-based Samsung Galaxy, but Outlook has been my email client for many years. Actually, most computer users are just like that.

In addition, I look at this from a competition angle, and even if I use proprietary software for a certain purpose, I want open source to exert competitive pressure on it. That's why I care about FOSS being competitive, which is admittedly a rather utilitarian view. It's the perspective I had in mind when I started this "FOSS Patents" blog. Over time my focus has shifted anyway. 7 out of my 10 most recent postings covered smartphone patent disputes...

When I report on patent litigation, I shut out all political considerations and focus strictly on the legal processes, the technical scope of the asserted patents and the commercial framework, and just like everybody else I'm interested in clues as to which litigant may have the upper hand and how a dispute might impact vendors, consumers and application developers.

I guess war correspondents find themselves in a similar situation, especially if they participated in peace demonstrations earlier on.

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Europe's friend FRAND

Last week I proposed a roadmap to a compromise for the revised European Interoperability Framework (EIFv2): free and open source software (FOSS) should meet FRAND (fair, reasonable and non-discriminatory) licensing half way. In my opinion, FRAND is a valid concept and suggestions that all FRAND is evil are unfounded.

There are still some who falsely claim that FOSS and FRAND are irreconcilable concepts. Those believe that the EU's love of open source is going to be greater than its belief in FRAND as a viable solution. They want to make FRAND a second-class citizen.

Meanwhile, my assessment that FOSS and FRAND can coexist has been supported by the official EUPL (EU Public License) community blog. The EUPL is the logical choice for open source projects of European public administrations, and it does not prevent the implementation and distribution of patented standards and inbound patent licensing.

Since the argument that only royalty-free standards are truly "open" is unfounded, there's no way that the EIFv2 could be adopted without fully recognizing FRAND licensing as a path to interoperability. FRAND has many friends in Europe, including a solid majority of the European Parliament and European Commission vice-president and Digital Agenda commissioner Neelie Kroes. Now is a good time to look at some of the EU's ringing endorsements of FRAND in connection with interoperability.

European Parliament resolution on the future of standardization

On Thursday, the European Parliament adopted a resolution on the future of standardization. Through that non-legislative resolution, the chamber indicates to the European Commission some of its positions ahead of the Commission's development of new standardization guidelines.

Item 66 of the resolution contains the following passage:

[The European Parliament] stresses the need to ensure that licences for any essential IPRs [intellectual property rights] contained in standards are provided on fair, reasonable and non-discriminatory [FRAND] conditions;

So the same decision-making body that voted down a proposal on software patents five years ago and supported open source on numerous occasions has made it clear that FRAND is a good framework for the commercial terms on which standards-related patents are licensed.

The European Parliament doesn't consider FRAND to run counter to the concept of open standards. In fact, items 7, 16 and 68 of the resolution call for "openness", and item 67 for "open, transparent and consensus-based development processes".

Draft guidelines on horizontal cooperation agreements

The Parliament's aforementioned resolution primarily relates to the Commission's draft guidelines on the applicability of EU cartel rules to horizontal cooperation agreements. A standard-setting organization supported by major industry players can be viewed as a cartel, and the Commission's guidelines are meant to facilitate the process of standards development by laying out how a standards body can steer clear of violating EU competition law.

The draft guidelines contain multiple endorsements of FRAND licensing. The most important one of them is found in item 277:

Where participation in standard-setting, as well as the procedure for adopting the standard in question, is unrestricted and transparent, standardisation agreements which set no obligation to comply with the standard and provide access to the standard on fair, reasonable and non-discriminatory terms do not restrict competition within the meaning of Article 101(1).

The above paragraph is very relevant to the EIFv2 debate. It makes it clear that FRAND terms are not anticompetitive, and even more importantly, the openness of a standard is defined by "unrestricted and transparent" participation and procedures as opposed to royalties.

Focus on transparency in Neelie Kroes address at OpenForum Europe 2010 Summit

In June I listened to Neelie Kroes's speech at the OpenForum Europe 2010 Summit. Speaking to the "royalty-free" lobby, she urged "all stakeholders to focus on the content of the package rather than the wrapping" as far as the term "open standards" is concerned.

Talking about conditions that patent holders may impose, Mrs. Kroes stated her preference clearly: "the fewer constraints the better." But she also made it clear that she would let the market decide. In my opinion, that's the right approach because FOSS can implemented patented standards, and FOSS can compete successfully. All major Linux vendors have agreed to pay royalties for patents, a fact that hasn't made Linux any less eligible from the perspective of public administrations.

This sentence in her OpenForum Europe address is particularly important:

I have nothing against intellectual property being brought to the standard-setting table, but it must be disclosed.

That quote shows an approach that is very similar to the European Parliament's resolution on the future of standardization: openness in the sense of transparency is key, and FRAND is perfectly compatible with those overarching goals.

Mrs. Kroes said in the same speech that "reasonable people often disagree" when trying to set FRAND license fees. That's a challenge, not a knock-out criterion. FRAND isn't a mathematical formula that arrives at a simple result. FRAND is a framework, and the way it's interpreted is subject to the specific circumstances of a license agreement. Of course it's simpler to determine that all license fees should be zero. But the simplest solution isn't necessarily the best one; it's rarely appropriate in contexts of a certain complexity.

Endorsement of FRAND standards such as MP3 and 3G

I recently saw a blog posting by Trond Undheim, EU "open standards" lobbyist of Oracle, in which he described the EIF process as a "tragedy" only because some disagree with him. He vented his frustration by referring to a group of EU officials as "rats" transmitting the "RAND disease" (RAND is synonymous with FRAND). After using that word half a dozen times he then added a spurious disclaimer concerning what "rats" referred to. Later he deleted all mentionings of that word, and finally disabled that embarrassing article as a whole. (I have kept a local copy. and as I write these lines, the edited version of the post can be accessed here.)

The ones who pursue this kind of divisive strategy also tend to portray Mrs. Kroes as an unconditional supporter of royalty-free/restriction-free standards and make other members of the European Commission, or certain DGs (directorates-general), out to be on the side of proprietary software companies.

The positions Mrs. Kroes takes in her public speeches are actually much more balanced and inclusive. In this speech delivered in 2008, she used MP3 as a positive example. MP3 certainly comes with restrictions and with obligations to pay royalties.

in late September, when she talked about "common open technology platforms", her example was the 3G mobile communications standard, which is a patented standard licensed on FRAND terms -- just like MP3.

FRAND's role in antitrust law

The European Commission is also an antitrust authority, and in that role considers FRAND a perfectly acceptable approach -- and FRAND-based royalties compatible with open source rules.

In October 2007, the Commission announced an agreement with Microsoft on how to meet its obligations under the 2004 Commission decision to the regulator's satisfaction. At the time, Mrs. Kroes was in charge of competition enforcement. She said that the licensing terms agreed upon would "allow every recipient of the resulting software to copy, modify and redistribute it in accordance with the open source business model" and was pleased with Microsoft's related business practices "in particular towards open source software developers".

Those open-source-friendly arrangements, however, involved payments: a one-time fee for access to some documentation, and a percentage of revenues for a patent license.

When the Commission accepted commitments from Rambus in a case involving patents on microchip technologies, Mrs. Kroes talked not only about that particular antitrust matter but also. more generally, about "lessons learned for standardization":

This is why many standards organisations require not only disclosure of potentially relevant intellectual property rights, but also a commitment to license those intellectual property rights on fair, reasonable and non-discriminatory - in other words FRAND - terms. These conditions precisely aim to prevent one company unlawfully capturing a standard and overcharging for its technology.

So FRAND is fully acceptable from an EU competition point of view, and there's no reason why it should be treated any differently by the EIFv2.

In another antitrust case, IPCom, the Commission issued a press release with the following headline:

Antitrust: Commission welcomes IPCom's public FRAND declaration

That statement described FRAND as pro-competitive:

The unrestricted access to the underlying proprietary technology on FRAND terms for all third parties safeguards the pro-competitive economic effects of standard setting.

Against that backdrop, I venture to predict that the Commission is going to be consistent with its multiple past endorsements of FRAND and its accurate distinction between openness and royalties.

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