In my last blog, i made the point that IBM represents a counterbalance against the danger of Microsoft, or some other organization, using patent law to stymie open source computing. So it was interesting to see IBM put forward a related proposition a day or so later at LinuxWorld. Big Blue promised not to use its patent portfolio against open source technology in future.
The pledge is a useful one; though not overwhelming. Certainly there are those that insist that open source requires a more formal contract – Bruce Perens called for a signed covenant from IBM promising no future patent actions.
IBM tends to use its patent arsenal–it holds more patents that any other organization–in defence of its interests, rather than to attack other businesses. Thus, for example, it used patent laws to fight back against SCO’s copyright claims.
So what if Microsoft tried to set the lawyers on Linux? IBM would have to respond, because its interests are so closely aligned to Linux. An attack on Linux is an attack on IBM, as SCO has already illustrated. Having said all that, organizations change over time, and IBM is certainly more aggressive these days than it was just a couple of years ago. Who can guarantee IBM might not feel the need to abuse its patents in future? That is why Perens has a point. Trust requires rigour, not just keynote speeches.
Rather than helping to build some kind of open source patent clearing house, though, I would argue IBM should put its weight behind a more fundamental reappraisal of current patent law across the board. As the Electronic Frontier Foundation points out, many awarded patents are ludicrous, and are certainly not inventions. Patent law, like copyright law, is badly skewed towards massive organizations with deep pockets, which phalanxes of lawyers happily delve into as they go to war against innovation.
At a time when Microsoft is getting more serious about patent law, and when organizations are increasingly looking to abuse the system, it would be good to see IBM take a moral lead and stronger stance here. Morality is not divorced from business, or at least it shouldn’t be.
News.com reported Nick Donofrio, IBM’s senior VP for technology, as saying: “Open collaboration has been an essential component in scientific progress, and employing it means companies can focus on where they make money and don’t have to squander resources re-inventing the wheel. The open movement forces people to rethink their intellectual property models, to rethink where they can offer the most value to their customers and what really creates competitive advantages, over the next decade, you will see the open movement spread. The creation and value of intellectual property will be dramatically transformed.”
It is up to IBM to help drive such as transformation, on a global basis, and lobbying to reform patent law would be a superb place to start. Given that IBM, with its massive arsenal of patents, potentially has something to lose by reform, putting public muscle into it would be hugely symbolic. So far the open source revolution has touched and dramatically changed IBM’s developers and marketers… now IBM’s lawyers need to grok it. The SCO case is a copyright-driven shot across IBM suits’ bows, so Big Blue’s lawyers are certainly aware of potential threats…
So why do we need to reform patent (and copyright law)?
As Bill Joy of Sun sagely noted: Innovation is what happens elsewhere”
Or as Lawrence Lessig might put, it is the Commons that drives innovation – that is where explosions of creativity happen.
The point is that innovation can happen without top down control, in fact it is more likely. It would be good to see IBM put up the umbrella and protect the open movement by being truly revolutionary. Patent and copyright law doesn’t just happen–big businesses lobby for it. In recent times Intel and Sun have been defenders of innovation by lobbying againts the disastrous Digital Millenium Copyright Act (DMCA). The DMCA is the Patriot Act of Copyright law – it offers unprecedented opportunities for abuse of rights by removing burdens of proof. In terms of how technology is used the most scary flavor of DMCA thinking is the “Induce Act”, which probably even makes me a criminal given past postings about fair use, copyright law and the rights of the end user. The Induce Act, if it goes through will make it a crime to even encourage someone to rip and burn, let alone provide technology to do so. Seems to me like it would conflict with the US Constitution protections of free speech–but then again, the Constitution is under regular assault these days, so that’s no surprise.
If we really want both innovation and lower prices–and it is clear that open source methods, approaches and technology delivers exactly that, then it is worth fighting for. IBM can perhaps protect the Linux community against attacks by Microsoft, but the societal issues at hand are far more significant and broad than worrying about an operating system, given for example the emergence of gene therapy and stem cell research. IBM is a true innovator–many important breakthroughs in computer science happen at IBM labs, which others also exploit. Now its should lobby for an environment where further innovation is assured, where its patent arsenal is something we can all build on, rather than being a corporate weapon.
Turning guns into ploughshares, patent arsenals into common innovation support. With a more balanced patent and copyright environment we wouldn’t need a mutual annhilation scenario to support further development. Donofrio’s keynote was a good step forward but I would like to see substantive contractual and political commitments from IBM in this area.
It is not always easy to explain why patents benefit customers; by design they tend to keep prices high by instituting formal barriers to entry. By working to shake up patent law IBM could make the benefits more explicit and do us all a favour in the process.
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