Tom's Plain Language License for Mere Mortals

For the past few months I've been working sporadically on a piece of software. It's not a great looking bit of code but interesting none-the-less. It's a simple document management system called Document Locker that allows you store files in a repository (so you know where they are) and wrap some metadata around them. That's not the interesting part. What's neat is that you can define relationships between documents and see which is connected to which. This approach will be most helpful when organizing multi-part documents, scientific papers, and a software project.

Finally, the day is near that I am to release it into the wild, including source code. Roughly two weeks hence, Document Locker 0.5 (the first iteration) will be made available through www.techalignment.com. Part of preparing for the release is developing a license. All software needs a license to keep it from being misused and to protect the creator. This includes open source software. It never ceases to amaze me how little people realize that open source has a license.

I looked over all the major licenses such as Apache and GPLv3. All of the open source licenses I examined had the same problem – they are a mass of legal gobbly gook. I'm used to reading contracts and license agreements (which are a kind of contract) and they were still a tough slog for me. And long? As Sarah Palin would say “You betcha!” No sane person would subject themselves to reading these documents unless driven by necessity. It's like eating bugs. You would do it if you had to but not if there was an alternative.

The reason that even open source licenses are like this is because they are written by lawyers. Lawyers, like engineers, have their own technical language. They have their own concerns and worries and they think in a certain manner. The documents reflect this. I'm not saying it's a bad thing but for a great many uses this type of language obscures more than it illuminates.

When you get down to it, a license exists to create an agreement between people about rights. As the creator, I hold all the rights. You can do certain things with my creation but only those things that I allow. If you can't understand what I'm allowing you to do, how can you be expected to uphold your end of the agreement? You can't.

So, I set out to develop my own license. I'm pretty sure that a large number of lawyers would think I'm nuts just I would if lawyers wanted to write software. My goals were:

1. To make obvious what I was allowing a recipient to do.

2. To make obvious what they can't do.

3. To say so in plain language that anyone could understand.

4. Keep it short. Life's too short for long licenses.

5. I wanted to make a point about licenses.

The result was Tom's Plain Language License for Mere Mortals. It is as plain language as I could get. Unfortunately there is no getting away from referencing other, big, heavy, legalese licenses. Since I have to reference the Java and Neo licenses the reader is still struck with reviewing those licenses. Too bad. Otherwise, it's pretty straightforward and just a bit irreverent. Irreverent? That helps me to achieve goal number five and make the point that software licenses, even benign ones, are so complicated, so full of legal jargon, that they are useless as the basis for a relationship.

With Tom's Plain Language License for Mere Mortals you know where you stand. If you can't understand what you are agreeing to then you shouldn't be mucking about with software. Really.

If you are interested in a preview, you can check it out at www.techalignment.com/TomsPlainLanguageLicenseforMereMortals.pdf. Twitter comments (direct message please) or email them to me if you know my email.

Monkeys Flinging Poo

As anyone who reads this blog (thanks to both of you) knows, I've taken up writing code again. It's a hobby to keep me busy while I look for my next great adventure. The act of writing code is an act of creation. You make something. Software is especially satisfying since, in a sense, you make something out of nothing. Feels kind of god-like in that way. You start with with nothing, say “let there be applications”, and it comes into being. I'll grant you, it's not as easy as that but neither was creation. The big band, stellar and planetary formation, and evolution all took energy.

At the same time, I've been watching various members of the software industry throw patent lawsuits at each other. It's a bit like watching monkeys in the zoo fling poo at each other. Mildly amusing until some of the poo escapes the confines of the cage and hits a spectator. All of a sudden, it's not so funny. Well, it is kind of funny but not for the one who gets hit with the poo.

All of this legal poo flinging just doesn't feel right to most people. Yes, we want our creations protected. If someone tries to steal my work, I would become an angry god and want to throw thunderbolts (and poo probably). On the other hand, what is being patented is ephemeral. There is still a lot of rancor over Amazon's One-Click patent. The idea of patenting the idea of a single click purchase seems absurd to most people. A lot of software patents are that absurd. The upshot for the software company is that they are expected to protect important assets but their own customers think they are greedy hatemongers when they do.

Worse of all is that customers get caught in the crossfire. They worry that they will lose their investment through no fault of their own. Will they have to change what is working for them in the future because of some crazy corporate rock throwing? In essence, they are afraid of being the spectator that gets hit when the monkeys go at each other.

Lawsuits are not good for companies either. In technology-based industries, even when you can claim victory in a lawsuit, it's almost always a Pyrrhic one. You don't so much win as lose less. Take Apple for instance. They are suing HTC for making a smartphone whose software, they feel, violates patents associated with the iPhone. It doesn't matter if, as a matter of law, they are right or wrong. The damage to their image is already done. Instead of appearing to be a technology company that wants to transform the world (“Think Different!”), they are revealed to be a company like any other - more concerned with money than with customers. Win or lose, they have already lost something. What did the Sun and NetApp lawsuits do besides make both look venial?

At the heart of the problem is the nature of software. It doesn't follow the same rules as other things that are awarded patents and copyrights. Software is not physical. You cannot hold it in your hand. Holding the a CD or DVD is not the same. It's like holding an empty glass and claiming your are really holding the air. A physicist might agree but everyone else will think you're being silly.

Software is not literature as much as we like to think of it as art. Digital music is still music and an ebook is still a book. Software is neither of these. It is a thing unto itself that follows it's own rules. Code is more than mere instructions but less than art.

Software represents a new type of intellectual property. We need to recognize that. Copyright law doesn't adequately protect the software creator which is why End User License Agreements stuffed into a PC game box read like the US Constitution. With the amendments and commentary. Patents don't work since there is no physical manifestation and software is hopelessly vague to define under patent law. Just read a couple of software patents and you will find yourself saying things like “ Well Duh!” and “We've been doing that for 20 years now!”

IP law, especially in the US, has struggled for two generations with software. How do we protect our creations when they are unlike any other creations? How do we set up rules that people can easily follow? Patent and Copyright wars are counter productive. We need guideposts that avoid these conflicts.

I propose a hybrid of copyrights and patents. Patent law gives a short term monopoly to someone who devises something unique. That uniqueness is the code base. For the software industry to keep moving apace, it needs to be a really short term. A year or so, not seven or ten. That's just enough to give a company a head start.

After that, it should be protected more like a copyrighted material. People shouldn't be able to just copy and distribute your product without permission. They can come up with something of their own but not take your product as their own. That forces them to invest something in their take on what you did. But not until you have time to grab a little market share.

I'll let the lawyers work out the details. They're good at that.

Like the aforementioned monkeys, the patent lawsuit winner is the one with less poo on them. They still end up with poo on them though. And no one wants to hang around and watch for fear of getting poo on themselves. In the end, you find yourself alone and covered in poo. Not the way to go.

Why All The Suits

Looks like we have another patent infringement suit in the technology arena. The latest involves Kodak versus Apple and RIM. While I'm sure there are some interesting aspects to this (such as how Kodak has already prevailed against other smart phone manufacturers in similar suits) it is just one of many that have been launched over the past few years.

This started me thinking. In my (relative) youth, one hardly heard of patent infringement or any other type of intellectual property (IP) suits amongst computer tech companies. When it did occur, what stood out was how damaging they were to the companies that initiated them. The Crossroads suits against a number of Fibre Channel bridge manufacturers in the 90's sticks out in mind as an example. In the end, lots of damage but little reward.

So what's changed? Three things I think:

1. Computer and consumer technology have merged. What is a smart phone if not a hand held computer?

2. We are in the midst of a recession that is depressing R&D budgets. That makes it hard to create new technology.

3. The computer and electronics technology industries have grown up. What used to fit in a garage now fills many office parks worth of buildings worldwide.

These factors amount to a perfect storm from an IP point of view. Without the ability to generate significantly new technology, the value of existing technology becomes high enough that litigation is worth it. Also computer technology and electronics companies are running smack dab into the consumer electronics market. The rules are different in this arena. The collegial, cross-licensing culture of the computer industry does not exist here. Consumer business are based on smaller margins and control of markets. There is no “a rising tide lifts all boats” attitude here. It's more of a “my battleship will sink your battleship” mentality. IP is an effective weapon in maintaining these margins and markets.

Finally, the computer industry has grown up. Businesses that started in a garage are now the homes of captains of industry. They are no different from the steel or auto industries of bygone eras. They have shareholders who do not understand the gentlemen agreements that were typical in the industry. Collaborations that could be sealed with a handshake in the past now require lawyers, accountants, and 50 page agreements. A mature and aggressive IP policy comes with the territory. If you want to be a billion dollar business you have to act like one.

These factors practically insure that we will see more IP related suits. More patent infringement suits, more copyright infringement suits, more trademark infringement suits, and lots of IP problems with non-disclosure agreements and partnerships.

This situation brings to mind the great line that Sir Lawrence Olivier speaks in the movie Spartacus. He says “the problem with being a patrician is that sometimes you have to act like one.” This same problem exists for big companies, even computer technology ones. Sometimes you have to act like a big company and IP related lawsuits are part of the big company game.

Sudo You?

Whenever I write about patents, trademarks, and copyrights, I'm always careful to state two things up front. First, I'm not a lawyer. It is quite possible that I am missing some part of law that makes my opinion invalid. I try to understand the technical underpinnings of the patents and see what it means to the computer industry and economy at large. I'm not trying to be an attorney.

Second, I am completely in favor of intellectual property protection. I am not one of those folks who believes that patents are evil and that all software should be open source. The fact of the matter is, intellectual property protections provide motive to continue to innovate. They protect the small inventor from having their life's work pulled out from under them by a deep pocketed company. Same goes for copyright and trademark protections. History shows that if people can't benefit from their work, they'll do something else and we all lose out on the richness of life.

Patents are monopolies granted to an inventor in exchange for adding to the useful knowledge of the world. Without them, the world would be full of virtually permanent monopolies as inventors strive to keep inventions secret rather than disclose them. It is also well understood that without the time based monopoly, many inventors would not recoup their investment in innovation and wouldn't bother inventing in the first place. When it costs nearly US$800 million to develop a new drug, patent monopolies are the only way to recoup the costs and make a profit.

That's why I took it with a grain of salt when I saw the initial commentary on the new Microsoft Patent ( number 7,617,530 ) issued November 10, 2009 and originally filed in April of 2005. You see, there are a lot of people who hate the idea of software patents. In their eyes, no software patent is valid. I'm still not sure where I stand on software patents nor am I a Microsoft hater, so I tried to turn a critical eye to the patent. Once I read it (and read it and read it and read it...) I came to a very firm conclusion: What was the USPTO thinking? This is so obviously wrong that I can't imagine how this got through.

The patent is entitled “Rights Elevator”. It describes “systems and/or methods” to allow a computer user to elevate their rights from a lower, standard user account to higher level administrative rights. If this sounds familiar, that's because it is. It has existed in UNIX systems since at least the 1970's. In UNIX and Linux we use a command called su, for superuser, to obtain the rights of another user with higher level rights. There is even a short hand version called sudo which runs a command or program once with elevated rights.

All patents have to pass certain tests for them to be granted by the US Patent Office. For a patent to be granted the claims must describe an invention that is novel (new), useful, and non-obvious to practitioners of the inventor's art. These tests are important. Without them a lot of inventions would be granted patents that should not. That would, in turn, inhibit innovation.

It is hard to argue that this patent passes at least two of the three tests. I agree that it is useful. The ability to briefly elevate rights to install software or copy files to a restricted directory has been proven to be good method of balancing security with the need to do certain important functions. I have a Unix book from the late 1980's that tells a sysadmin how to do that using existing UNIX commands like su. Therein lies the problem. It has already been proven to work because it already exists. That kind of kills the novelty of the invention doesn't it. The patent makes the argument that remembering a user name and a password is too difficult. Part of what is says is innovative is not having to remember a user name. That's a load of hooey. How hard is root to remember?

Let's be nice though. The Microsoft patent also includes a component to select a higher level account with a GUI and ask for a password. You have to admit, given the prevalence of graphical operating systems today that seems like an obvious addition. Wait! Did I say obvious! That seems to run afoul of the non-obvious test. In fact, this is something that most Linux distributions do today. They even reference Ubuntu, Debian, and Red Hat in their prior art list. How is this method any different from what is already done in Linux and Unix systems.

To be fair, this method of elevating rights temporarily with a graphical interface may not have been used when the patent was filed in 2005. I don't think that's true but I'll give the USPTO the benefit of the doubt. The method outlined in the patent, however, doesn't move far beyond sudo (which is also referenced in the prior art listing). Certainly not far enough to claim novelty and non-obviousness. It doesn't take an expert in software and operating systems to see that, never mind someone practiced in the art of system administration.

This method is so ubiquitous that everyone does this. Everyone except Microsoft that is. Windows, in all it's forms, has always required you to either have administrator rights or log in as someone with those rights, when that was possible at all. The Windows Vista UAC allowed you to override built in restrictions not elevate your rights temporarily. The UAC never even kept you from doing something. It just nagged you that it was bad. Windows 7 finally catches up with the rest of the world and Microsoft is trying to patent it. Talk about making lemonade from lemons.

How did this one get by? There could be a lot of reasons including overworked patent examiners. The patent should be overturned and likely (hopefully) will. In the meantime the patent office needs to do something. Maybe independent panels who don't work for a vendor. I'm not sure. All that patents like this do is throw fuel on the fire for people who want to eliminate patents, especially software patents.

This one should never have been granted. But then, I'm no lawyer nor do I play one on TV.

EMC Pacmans Kazeon. Mmmm. Good.

More news on the storage M&A front and once again it's about EMC. EMC announced that they are acquiring Kazeon a self avowed “leader in eDiscovery” tools. Stripped of all the eDiscovery hoopla, Kazeon makes a decent indexing and classification rules engine. In that space, it is a very useful thing indeed.

What Kazeon does is catalog and index your data and run the information past a rules engine to generate additional metadata. Again, that's good but only as good as the rules. They also layer on some analytics which is all the rage in eDiscovery. Analytics are also only as good as the data and metadata and, in my opinion, overemphasized in the eDiscovery market. But that's just me...

Kazeon is a hand in glove fit for EMC. For many years now EMC has looked to get past selling just hardware and has wanted to sell systems to store and manage data. That's a great strategy since it creates new value but sticks to their knitting. Kazeon is another value added tool that EMC can add to their toolbox.

The Kazeon acquisition also gives them some eDiscovery street cred. They have been trying to play in the eDiscovery sandbox for years, mostly through their Documentum offerings. Nothing wrong with that since the majority of eDiscovery work is about workflows anyway. However, automated tools for tracking data also are important not only to discovery during litigation but also to insure compliance with in-house data retention rules. And by retention I mean destruction. But you knew that didn't you...

The dirty secret about data retention is that no one can really comply with their own internal rules without knowing where and what all their data is. Knowing where all your data is is a really hard problem to solve. That's where Kazeon comes in. They create catalogs of vast amounts of data that allows you to better comply with discovery rules, a preservation and legal hold, and internal data retention policies.

So, Kazeon is an obviously good thing but why is it good for EMC? Actually, there are two (probably more) reasons why this works so well. First, it adds value. If I buy tons of EMC storage, the Kazeon/EMC products will help me to know what I have on it. Second, those catalogs of information and metadata need, you guessed it, more storage. It's the reason Documentum was such a good deal for EMC. It lets you get more value from your stored data and makes you store more data. A twofer for EMC.

EMC will now be able to deliver, by itself, one of the most comprehensive information management systems available. By combining Documentum, Kazeon, and all the other tools EMC has at its disposal, plus hardware, they will be able to deliver an information management solution that will make lawyers squeal with delight.

That's not to say it's perfect. Kazeon can't help you if someone dumps their files onto a flash drive or emails a smoking gun document to their Gmail account. Smartphones and PDAs are also a challenge that Kazeon will not help with. Still, they hit all the high notes and do better than what most companies do - which is nothing!

As an aside, Kazeon also has an intellectual property (IP) management component to their systems. IP management and eDiscovery are very similar problems – you need to know what data you have where, in order to comply with rules and regulations. EMC has often touted Documentum as an IP management tool. They haven't gotten too far with that since it takes so much effort to set up Documentum to do IP management. Unless you are already committed to Documentum across the company, there are better out of the box IP solutions. Kazeon will give them some more heft in that space. It will allow EMC to automate many of the sticky tracking and classification tasks associated with IP management, especially in preventing leakage. It's not there yet, but getting better.

I don't know if EMC is full yet after eating up so many companies. Kazeon is quite a tasty and healthy morsel for them though. It makes good, strategic sense. I wonder if they left room for dessert.

More on the Microsoft Word Patent Infringement

I am truly fascinated by the Microsoft-i4i patent infringement case. What's not to love. A small company takes on one of the biggest money makers from one of the biggest companies and wins! Today, Groklaw ( www.groklaw.net) published links to the court documents along with some commentary. It's really good stuff.

As I have (repeatedly) mentioned before, I'm not a lawyer. I'm a technologist and business person. Some of the arguments presented in the documents are technical legal arguments. I won't even begin to comment on those.

I also won't comment on the whole idea of software patents. I'll let the folks at Groklaw do that. In this case it really doesn't matter because it's not what the case is about. The core issue is whether Microsoft should have known better and done something different before adopting OpenXML.

What caught my attention immediately was how the court got the subtle technical arguments presented to it. Clearly, this is not a case of some judge living in the DOS age. Despite Microsoft's protests to the contrary, the court understood the technical arguments and simply didn't agree with Microsoft. Too bad for the boys in Redmond – someone found a judge with the geek gene.

The opinion goes even further and says that there is no evidence that the jury didn't get it either. In a way, the court says that unless you can prove that the jury is stupid, you shouldn't assume they are. Truth be told, the technical aspects are not that hard to understand. Despite all kinds of obfuscation, it appears (at least to the judge) that the jury understood the issues well enough to decide rationally. As normal people become more sophisticated about software and computers, the “ jury is a bunch of technology dolts” argument will be harder to make.

Here are a few additional thoughts based on the court documents:

1. The court understood that a metacode was like a programming instruction designed to manipulate content for display. The definition it used was “an individual instruction which controls the interpretation of the content of the data.” This is dead on. A file of codes mapped to the content is the metacode map called out in the patent claims. I do have to wonder if this definition could be applied to other types of instruction-to-content mapping schemes like CSS. However, the patent is pretty narrow (which is probably why it was defensible). Further study is required.

2. The Finisar vs. DirectTV ruling popped up. The short form of Finisar is that if you sell a component of something that is important to the product and infringes, the whole darn thing infringes. You can't buy an infringing LCD component, put it in a TV and say “TV's aren't patentable!” Sorry. Doesn't work that way. It was used in legal arguments around contributory infringement. Finisar is something to watch out for when you buy components. If you put something in that infringes on a patent you might be hit over the head with it, even if you get it from someone else. Know the IP situation at your vendors!

3. What is even better is that i4i's claim to infringement was proven, in part, by a Microsoft email! An email from an employee that indicated they knew they were infringing. From the court's opinion:
   “ i4i even presented an internal Microsoft email from January of 2003 containing i4i’s product name, the patent number, and a statement from a Microsoft employee that i4i’s technology would be made “obsolete” by the accused WORD product (which admittedly added XML functionality to the previous version of Microsoft’s WORD product).”

   It almost seems like a joke that Microsoft, who sells products to manage email for eDiscovery, could get hit over the head with a smoking gun email. Probably created in Outlook and sent from Exchange. For this alone, Microsoft should be embarrassed.

4. I love the arguments about what a data structure is. It was almost Clintonesque, on the order of “depends what 'is' is.” Even Microsoft's own expert had to concede that their own previous arguments support the i4i definitions. And you wonder why the jury didn't believe Microsoft. That and the email maybe.

5. Obviousness was obviously argued. Microsoft based it's obviousness argument on the inventors' own previous software. The inventors themselves disputed this and apparently the jury believed them. Again, who are you going to believe? They guys who invented it in the first place or the alleged thieves? Discuss amongst yourselves.

6. At one point, Microsoft must have argued that since the USPTO was willing to reexamine the patent, that shows that it could be invalid. I like that one a lot. The judge, not so much. The court rightly points out that looking something over a second time is not that same as saying it's invalid.

In the end, reading the court documents provides a picture of a jury and judge who actually understood what the deep issues were. That's encouraging. You hear so much about juries and courts that give enormous awards based on emotion because they don't understand business, technology, medicine, or science. That does not appear to be the case here. Big message here – don't rely on stupid juries. They aren't so stupid.

A couple of other takeaways. One, even mighty Microsoft can be hit in the head with an email. Get control of that now. This is an example where someone has to train folks not to write this type of email in the first place. I'm still chuckling over this one.

Second, take software patents seriously. It is clear that Microsoft knew that this patent existed. They just assumed they could get away with ignoring it or beat i4i into submission. Such arrogance should not be tolerated in any company. All of this unpleasantness could have been averted. I bet Microsoft could have bought out i4i for much less than the litigation is costing them.

And finally, whether you like or dislike software patents, this is an argument in favor of them. i4i, a real company and not a patent troll, would have had their technology stolen from them without the protection of the patent. The system worked and protected the small inventor against the giant corporation. Huzzah for patents!

I promised I wouldn't comment on software patents, didn't I? Sorry about that but I couldn't resist.

i4i Pokes Microsoft In the Eye

Microsoft just a got a poke in the eye with a sharp stick. It was delivered by a company out of Toronto called i4i with the help of a judge in Texas. They have, in theory, halted sales of Microsoft Word 2003 and up and the Office bundles that contain them. How long this will actually hold, given appeals and such, is uncertain but the basis for the injunction is interesting.

i4i has a patent, US Patent 5,787,449“Method and system for manipulating the architecture and the content of a document separately from each other” , that describes how to finely format documents without embedding formating codes in them. The i4i method is to create a map of formatting marks associated with locations in a document. On the surface, this may sound like a common method but on closer inspection that might not be so.

The patent application itself gives a rather good history of document formatting starting with pre-printing press days through to the current electronic documents. You see, the most typical method for formatting electronic documents is to embedded formatting codes into the document itself. That's how the .DOC, RTF, and lots of other document formats work. You want a word to be bold, you embed a code for start bold text and end bold text in the document. In the old Wordstar days you actually saw the formats in the document. I guess I'm showing my age here.

The second most usual way to format an electronic document is to assign codes to parts of a document (such as a paragraph or header) which describe their structure. An external source file is then used to provide formatting for the document based on the structure. This is common on web sites since HTML describes the structure of a document but not its format. CSS describes the look of a document by defining the format of each type of content. So, in an HTML document, all <H1> tags define a header but not how the header looks. CSS defines how H1 headers look when displayed. These are further modified by embedding codes the old fashion way such as inline CSS. Separating structure from formatting has the advantage of allowing you to present different views of the same content. This is one of the ways that websites are able to give you a special view formatted for printing rather than viewing.

Both approaches have limitations. The first method tends to tie the document to a particular software package or API limiting it's openness. Like MS Word .DOC documents, the file might not look or print right when rendered in a different word processor or even a different version of MS Word. The second method tends to take a sledgehammer approach, coarsely limiting how the document is formatted. To get fine formatting you have to resort to kludges, such as using format types in only one place, or embedding codes the old-fashioned way and ruining portability.

What i4i came up with is a different method. It claims a system which creates a map, called a metacode map, which maps formatting to specific places in a document. It doesn't need to know anything about the structure of the content. In fact, it might have no structure at all other than what is forced on it by the formatting. The map is external to the actual document content allowing for different format files to be used with different content. This is apparently what Microsoft does in .DOCX, .XML, and .DOCM files. The i4i approach combines the fine formatting control of embedded formats with the portability and multi-view advantage of the external definition approach.

Since I'm not an expert on Word file formats, I can't comment on whether they infringe on the i4i patents. The judge seems to think so or he would not have ordered an injunction against the sale of the product. That means the judge thinks that Microsoft is infringing and doing harm to the patent holders.

What is Microsoft to do? They could try and get the injunction overturned. Likely they will try and do that no matter what. They might try and invalidate the patent but one usually does that before the injunction is handed down so I'm guessing they haven't had a lot of luck with that.

They can license the patent from i4i. I can't imagine why they wouldn't do that in the first place. No matter what it costs, it can't be as bad as this. At the moment, i4i has no real incentive to license anything to them. They have Word at a standstill and US$200M in Microsoft money. It doesn't get any better. Heck, if I was Google, I would buy i4i just to get the patent and kick Microsoft while they are down.

They could also change Word. To stop infringing, they will need to adopt another file format that is not tied to the patent. There are open source formats, like the ones that OpenOffice.org uses, or they could fall back on an older format. In any case, if they can't overturn the patent, they will need to change Word or pay more money to i4i.

There is a bigger problem looming and not just for Microsoft. How many other folks do the same thing? It is a logical thing to do. That doesn't make it legally obvious, especially in 1998 when the patent was issued. Most software companies tend to encode content in XML and use something like an XML style sheet or CSS to format it. However, if Microsoft could come up with this method for Word, why not lots of others. i4i should be emboldened to go after more infringing companies now. Once you have slain one big giant, the others do not seem so intimidating. Smaller companies will feel like easy pickings after Microsoft.

My advice to Microsoft – change Word now. Use the same format as OpenOffice.org. It also helps you with your open source cred.

My advice to everyone else who writes document-centric software – check your products. i4i will now have a more solid patent. If you do something like this you might want to change it or come up with an alternative. Otherwise you have only yourself to blame.

Aargh! There Be Pirates Afoot!

Today I ran across an article about a website called Pirate Bay. I won't give their URL since I don't need some automated system thinking that I'm promoting them. Whatever type of 'bot you favor, most are much more stupid than most humans (most, not all) and can't tell when someone is linking to a site for nefarious reasons or not.

Anyway, Pirate Bay is a bit torrent scanner. They publish the addresses of torrent streams used to download all kinds of - you guessed it - pirated media. Music, software, video, you name it. It's so incredibly blatant. I should also mention that these guys are in Sweden where the rules are different. This will be important later, so make a note.

Needless to say, these folks get a billion cease and desist letters on a regular basis. This does not seem to bother them much since they actually publish the letters on their web site along with their responses. The responses range from the merely snarky to the harsh and obscene. I won't go into details but, needless to say, you couldn't sit down after taking some of their "advice".

Much of their taunting revolves around Americans not knowing Swedish copyright law or threatening action under US law. Some letters exhibit a complete lack of basic knowledge about Sweden. Those letters get the extra special treatment as you might imagine. The basis for their disdain is the argument that what they are doing is legal in Sweden. They reserve special ire for those who threaten them with the Digital Millennium Act or similar US-based sop to the recording industry.

The evil part of me finds this truly fascinating, bordering on entertaining. It's not so much the letters that I find interesting. They fall somewhere between formulaic to downright silly, . It's that anyone would send them at all. Pirate Bay is very upfront about the fact that they publish these letters and verbally abuse the senders. Maybe there is a legal requirement but sending these guys a form letter is just asking for abuse and accomplishes nothing. That much is obvious to even a casual observer. What's even more remarkable are the responses to Pirate Bay's responses. Clearly, someone is not getting the message here.

I would also be worried about bringing this public derision down on my company or client. Basically, most of the companies that send them letters end up looking quite foolish. The marketing guy in me is just screaming "Stop it! The PR nightmare is killing us!"

So, while I don't condone what the lovely Swedes at Pirate Bay are doing, I have to admit they know how to make fun of something. If I was them, I would shut down the bit torrent site and just make fun of cease and desist letters sent to others. That would be worth something and they are very good at it. They could be the Jerky Boys of the copyright world. Now that's entertainment!

P.S. The bit about what Elk are still allowed to do in Sweden had me in stitches. I know that doesn't reflect well on me.

A House Divided Against Itself Cannot Stand

I've been watching the fratricidal spat between Sun and NetApp with increasing interest. Since I started working for IP.com, I've been much more immersed in philosophy and mechanics of intellectual property. Since patent litigation is complex and I'm not a lawyer (nor do I play one on TV), I am not going to comment on the validity of the suits. If you are technical enough, go ahead an read the patents involved and the legal filings. Draw your own conclusions.

What I don't understand is why there wasn't another way. Patent suits in the computer industry are notoriously bad for both companies. For those without long-term memory, please recall the patent infringement suit that Crossroads brought against a bunch of companies including Chapparal. Look how that worked out for them. They are not exactly Brocade now, are they? That might be a bad comparison given Brocade's recent legal woes but you get the picture.

In the computer industry, patent litigation breeds several effects. One, people stop buying stuff from both companies. Let's face it, do you want to buy a product that the company may not be able to sell in the future. Anyone who doesn't think that the SCO suit effected the adoption of LINUX is kidding themselves. The result of this suit will be to slow down sales of NetApp boxes as much as the ZFS file system. Since Sun is giving it away as open source, you have to wonder who this will hurt more, at least in the short term.

The second effect is to reduce the collaboration so necessary to the functioning of the industry. Suits of this nature build mistrust and fear. This, in turn, makes it less likely that companies will want to work together on certain projects. Who wants to work with the folks that might sue them tomorrow.

What is almost sad is how these two companies have let an opportunity pass by. That's a polite way if saying they had a chance here and screwed it up. Let's face it, Sun's storage offerings have always been weak. They are the almost-rans of the storage industry.

NetApp is constantly fighting for business against the stronger EMC, IBM (with its legions of loyal customers), and a host of smaller, nimble competitors. A connection with Sun would have benefited both. Sun has the breadth of hardware and software products and NetApp the storage strength. Instead of beating the heck out of each other, they should have decided to work together, whatever that takes.

I firmly believe that intellectual property is the cornerstone all industries, especially technology industries. It does need to be protected strongly. However, like all assets, it's there to be used constructively. This is not a good use of valuable assets. Instead, the patents are being used as blunt weapons. Sort of like using a gold bar to beat someone upside the head, rather than buying food.

So, here's my message to Sun and NetApp, two companies I respect - Stop fighting like dysfunctional siblings. Instead, bury the hatchet now (but not in each other's heads) and work together. I will even propose something radical - a merger. I'm sure the financial people will tell me I'm stupid but from a market perspective, it makes sense. You would end up with two stronger companies, better positioned to compete with the tech companies emerging in Asia and the already strong domestic competitors.

Make love, not war!

DISCLAIMER: Now that I work for another company other than my own, I need to point out that this blog is all my own thoughts and opinions. I do not represent in it any of the positions of my company. If you think it's stupid, then I'm the one you should blame. If you like it, then I'm brilliant but so is IP.com for hiring me. While I'm entitled to my opinions, when I'm doing my thing as an IP.com executive, I keep some of them to myself.

SCO Gets Pinned To the Mat

It looks like we are finally winding down the sad history of SCO. For those who have been living in a cave these past few years. SCO has been locked in a brutal legal battle with some of the software industry's heavyweights such as IBM and Novell. Before you start feeling sorry for them, their wounds are self-inflicted.

SCO was once an early purveyor of UNIX on PCs. That may not seem radical now but in the late 1980's it was completely insane but very cool. Their products were good but the company foundered and sold its assets to what was then Caldera, one of the many Linux companies started in the 1990's. So ended SCO Phase 1.

Caldera then changed its name to SCO and abandoned any pretense of selling software. Instead, they sent nasty letters to Linux customers accusing them of absconding with SCO's intellectual property and threatening legal action. They then went about suing companies involved in Linux, picking on IBM especially.

One problem: They didn't actually own the copyrights to UNIX. Oops! According to court documents, when the original SCO bought the rights to UNIX from Novell (who acquired them from AT&T), they got licenses to distribute UNIX but not the actual copyright for the software. In fact, Novell explicitly kept the copyrights for themselves. When SCO phase 2 realized this, they claimed that they should have had them and it was a misunderstanding on Novell's part. The judge didn't see it that way. Now, you can't sue someone for misusing something that isn't yours to begin with. So SCO had nowhere to go and might actually end up owning Novell money. With that in mind, SCO filed for Chapter 11 Bankruptcy. While not as bad as liquidation, it's not likely they can continue to exist when they own and do practically nothing of value.

Usually this would be sad, but not in this case. This is an example of an the worst sort of patent troll - the highwayman. Unlike many trolls who have legitimate intellectual property and only want a fair deal fro a license, SCO is the sort that lies in wait and then threatens someone with a loaded pistol. Only in this case, there were no bullets in the gun. Once they ran into someone (Novell) who was bigger and unimpressed, they got their clock cleaned. They were shooting blanks, so to speak.

Thus, we shall let's raise a glass in remembrance of SCO phase 1. Too bad what happened to them. Let's laugh at SCO phase 2 and hope that they serve as an object lesson to those who only want to disrupt and suck on the teet of technology, and not create. They will get their just desserts.

Riding That Train..

Riding the same train as my previous post on intellectual property, I turn my attention to those most reviled of creatures, The Patent Troll.

To many, Patent Trolls - those who buy patents only to generate licensing fees from them - are a form of life only sightly above parasitic worms. I don't understand the rancor. These aren't spammers or treet purveyors (all lower case, don't be upset Armour and Hormel). These folks simply bought an asset and are trying to get some money from it. If I bought a car and rented it out to people, would folks throw rocks at me? They might but not because of the car. This is no different.

When you read the stories of people complaining about Patent Trolls, two themes emerge.

• The complaining folks want something they did not work for, namely someone else's asset


• The complainers did not do their homework to see if there is a patent for the widget they are building

In other words, it's their fault they are in legal hot water.

The most common charged levied at the so-called Patent Troll is that they squelch innovation. Really? It would seem to me that it is in the patent holders best interest to license the patent as widely as possible. Otherwise, they won't make much money from it. The more times they license the patent, the more money they make. It is also in the Patent Trolls best interest to do this without litigation. Paying lawyers costs money. A lot of money. That cuts into the profit they can expect to make from licensing, in essence raising the cost of deriving value from the asset. Why bother to do a thing like that?

The reason they bother is that some people don't want to pay what the patent holder wants. Think about this a minute. The chief complaint is that the Patent Troll won't sell their asset for what certain people are willing to pay for it. Keep in mind, I did not say that no one is willing to pay that price. If no one will pay what the Patent Troll is asking, then The Troll will price themselves out of the market. That means that someone is willing to pay for it at the price the Troll wants.

Now, this only applies to legitimate patents. Companies that claim patents on public work, such as Linux perhaps, don't fall into this category. Patent holders who knowingly lie in wait for someone to develop products and then immediately litigate are scum. Companies that buy patents so that no one can use them are hurting the economy and the technology industry. However, if you buy an asset and simply want to be paid for its use, then you are not a troll. You are a capitalist.

The Intellectual Property Dilemma

The lifeblood of any technology venture is intellectual property, usually called IP. IP is what a tech venture owns. One look at a modern technology company and you realize the following:

• They don't have factories - Manufacturing is almost universally outsourced, much of it overseas


• Brands are transient or nonexistent - Other than Apple with its "i" and "e" products (which is becoming tiresome) most technology companies don't have strong product brand recognition. The other exception to the rule is Microsoft with it's Windows and Office franchises but even those are slipping. Most people have stopped referring to Windows as anything but the version ("Are you running XP or 2000?")


• Products change rapidly - Product lifecycles in many categories, especially PCs and consumer electronics, are as short as six months. A technology company cannot hope to milk the same product for years on end like Proctor and Gamble can with Tide.

All of this adds up to a need to develop and protect core technology. Technology drives innovation, products, and sales, not the other way around. The more walls you put around your technology, in order to prevent copying, the bigger your competitive advantage.

Herein lies the dilemma. The more you try and protect technology, the more difficult it is to work with others and the more restrictive the environment becomes for customers. If you open up technology so that others can use it - in order to develop the ecosystem your technology needs to thrive - you lose control over it. Over time, what was once a competitive advantage becomes commonplace and free. The tech company loses control over key technology and can no longer derive as much value from it.

The other problem is that too tight a control can actual inhibit innovation and usefulness. Let's face it, there are some features that are important to customers that you may not wish to or cannot develop. If others can, then everyone benefits. It's like holding Jello. Squeeze too tight and and it squishes through your fingers.

One solution is licensing. You can tie select partners, or anyone who wants to have a relationship with you, to agreements that restrict what they can and cannot do. That leaves you in the drivers seat. Unfortunately, these agreements are not always enforceable overseas. This is especial true in the developing world where IP and contract laws are not get fully realized. There are also a number of places where different cultural views of property exist. These work against the enforcement of agreements and basic IP rights.

You can sometimes use technology to protect your technology. The whole Digital Rights Management (DRM) space is about using technology to protect IP. However, DRM cannot easily discriminate between legitimate and illegitimate uses of IP.Two prime examples of DRM technology gone awry are the limitations placed on downloadable music or the silly way that Microsoft makes your computer phone home to reinstall your software. The restrictions placed on legitimate use angers customers and inhibits the spread of the product.

The open source world thinks it has the ultimate solution: give the technology away. This is a great way to develop core, commodity infrastructure. However, even open source relies on licensing, the GPL primarily, to make sure that there is no misuse. The open source license is, in this respect, just a different type of wrapper like proprietary licensing or DRM. As long as the wrapper can be enforced it works fine. The chief advantage of open source licensing is that by being less restrictive, there is less incentive to actually break it. There is also less advantage to be had from the IP. This is why you rarely see open source used for complete applications. The exception is community developed products like Firefox where the profit motive doesn't exist, and even that's changing.

So, where's the solution? Open source, DRM, restrictive licensing? Hardly any hold up in all environments. Either there are onerous restrictions on customers or it is impossible to truly protect the IP worldwide. However, I think I have a solution - social pressure. That's right, simple morality. If the world community responds with disgust and disdain to pirates, the pirates cannot thrive. Instead of suing customers or sending the FBI and Interpol after would be pirates, shame the the priates customers. Expose them and shame them! My guess is if the RIAA had simply called the parents of the big music sharers and said "do you know what your kid is doing" the big time distribution of downloaded music would have stopped sans all the negative publicity. What CEO wants to have his name in the paper with THIEF slapped across it. No one I know.

Of course there will still be outliers. There are always immoral people who will do what they want. Shame works here too. Others will not want to do business with wrong doers. If you don't think that Microsoft's reputation as a ruthless killer of small companies doesn't hurt it, then you haven't been looking at their stock price. Social conventions are very powerful tools.

So, as a community, lets resolve to gently inform people as to why we have IP rights and what their duty is. Bind us, not to a faceless legal document that practically no one understands except the lawyers, but to other people. Even in the developing world this can work since they presumably want to do business with Western countries. We have a strong cultural prohibition against piracy and should not do business with those who don't, regardless of cost considerations. If we make this clear and live up to our ideals the whole issue of how to protect IP will finally find some balance.