Lawrence Rosen
Rosenlaw & Einschlag, technology law
offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA
95482
707-485-1242 ● fax:
707-485-1243
Author of “Open Source Licensing: Software
Freedom
and Intellectual Property Law” (Prentice Hall 2004)
From: Jeffrey Thompson
[mailto:[EMAIL PROTECTED]
Sent: Friday, February 25, 2005
11:46 AM
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED]
Subject: RE: patent licenses on
OASIS standards
"Lawrence Rosen"
<[EMAIL PROTECTED]> wrote on 02/25/2005 11:44:31 AM:
> Hi Jeffrey,
>
> My proposed Open Standards Principles are
completely consistent with
> the W3C patent policy, with the addition of
sublicensing. I invite
> you to compare them. I also invite you to
compare it with the IBM
> non-assert statement of a few weeks ago. Except
that IBM’s non-
> assert is only for open source implementations
rather than to
> “everyone,” it
too is consistent. I think you’ll find that’s
true
> also for most of the licensing commitments for
standards that we
> already think of as adequate for our needs. So
my definition isn’t
> very far off, I believe.
>
I don't see them as consistent, but we'll defer that
discussion to another day.
> I want to separate out the discussion of which
specific definition
> of open standard is adopted from the notion
that we should have some
> such definition and we should enforce it. I
responded yesterday to
> Sam Ruby’s
email with my proposed definition, but I wasn’t trying to
> force it down everyone’s
throat. There’s
room for modification or
> even the adoption of something different. The
problem so far is that
> there hasn’t
been a proper venue for that discussion within
> standards organizations because of the enormous
shadow of RAND.
>
I agree that Apache certainly needs to understand
the effect of its choices to implement standards. Creating
a filter to identify those standards which Apache projects should steer clear
of would go a long way toward avoiding nasty surprises later.
That seems like a good project to work on. Whether that should be
translated into a broader OSS-wide definition of "open standards" is
another question. I don't know how easy that would be and once
its done I don't know how it would be used? Who is going to go tell
SAMBA to stop implementing CIFS, for example?
In any event, Apache guidelines would address, in my
mind, at least three basic questions:
1. Can Apache get the
standard? If
we can't get it, we can't implement it.
2. Can Apache publish its
implementation under Apache's license? This is the most
critical. Any
standards agreement that prevents open source implementations shouldn't be
embraced by Apache.
3. Is Apache opening itself
or its customers to royalties for necessary patents? This
is the hardest to answer. Your definition of open
standards spent a lot of time talking about the details of the patent licenses,
but in the end, the question is whether the open source project and its customers
qualify for the free license. Furthermore, the holders
of all necessary patents might not be known.
In the end, it boils down to is there a known patent
holder that has refused to offer an "acceptable" RF license for
necessary patent claims. Even for standards that
are nominally published under RAND
commitments, if all of the known patent holders have made RF commitments that
cover Apache and its customers then there is no practical roadblock for
Apache's open source implementation.
> Regards,
>
> /Larry
>
> Lawrence Rosen
> Rosenlaw & Einschlag, technology law
offices (www.rosenlaw.com)
> 3001 King
Ranch Road, Ukiah, CA 95482
> 707-485-1242 ●
fax:
707-485-1243
> Author of “Open
Source Licensing: Software Freedom
>
and
Intellectual Property Law” (Prentice Hall 2004)
>
Jeff
Staff
Counsel, IBM Corporation (914)766-1757 (tie)8-826 (fax) -8160
(notes) [EMAIL PROTECTED] (internet) [EMAIL PROTECTED] (home) [EMAIL PROTECTED]
(web) http://www.beff.net/
