Subject: Re: Patent-based dual-licensing open source business model
From: Thomas Lord <lord@emf.net>
Date: Tue, 12 Sep 2006 09:07:14 -0700

Lawrence Rosen wrote:
> I'm interested in the reactions of this group to a new patent-based
> dual-licensing open source business model adopted by International
> Characters.
>
> www.rosenlaw.com/IC-Business-Model.pdf. 
>   

Thank you for working on such a project.   I agree with the
broadest goals (securing royalties while contributing to an
open source commons).

Let's stipulate that the patent applied for here (a) will
be endorsed by community/peer review (e.g., is genuinely
non-obvious and original);  (b) will be granted and enforceable;
(c) will attract paying licensees.

First, then, the conjunction of stipulated conditions is
unusual and will not apply to most projects.    This isn't
a model that many others will be able to emulate.  Still,
if we also stipulate that (d), copyright alone is insufficient to secure
royalties to this inventor because implementations may be
cheaply derived from published descriptions of an algorithm,
then this form of protection is in this case necessary (if
we agree on the broad goals).

Second, best of luck in your discussions with Mr. Stallman.
A serious problem, for GPLv3, would be that if it were
made compatible with your license then the rights to use
and distribute some GPL programs (those using the
International Characters IP) would be curtailed.   For
example, suppose that I want to manufacture TiGnu --
a DVR with Tivo-like features running GPL'ed code in
user-reprogrammable firmware.   Your software patent would
prevent me from selling TiGnu machines unless I obtained
a license first.   Your software patent would prevent users
from using these machines in certain ways.  (A secondary
problem is that your license helps to support the existence
of software patents -- to accommodate you with GPL
compatibility, RMS would have to bet that the end result
would be that licenses such as yours are worthless because,
in the end, the patents are worthless.   The two of you are
in an adversarial relationship.)

Third, being incompatible with GPLv3 is, as you must
know, an uphill battle.   In many cases it means doing
"open source" with one-hand tied behind your back (you
may not use GPL-ed code).  Those of us who believe in
fixing, rather than discarding, IP incentives must look
forward to that battle but I think we make a mistake if we
each take our individual shots in an uncoordinated way.
At some point, we need a larger conversation about new
licensing regimes in hopes of developing a broad consensus.
Such a consensus would have to look beyond (but not overlook)
patent considerations.

Fourth and finally, two alternative approaches come to mind.
One is simply to ransom the release of the patent.  The other
is to take a two pronged approach:  (a) developing the business
of selling licenses to establish the value of the patent as an
emerging standard;  (b) deliberately short-terming the patent,
establishing a near future date certain for its release to the
public domain.    The point of (a) and (b) is to follow in the
footsteps of RSA and expand the set of paid licensees to include
firms aiming for open source but who want to get a head start
on developing with the invention.    The second option, *if*
it applies to the particular invention, is arguably superior to
ransom in that the seller isn't setting his own upper bound on
the amount of royalties to be collected.   Alas, both options
are vulnerable to competition by open-source replacement.
Compression algorithms, it turns out, aren't *so* hard to
invent, even if individual algorithms are original and non-obvious.
And so, confronted with too high a price to pay (in ransom or in
waiting for the release to public domain) the open source
community will find a replacement.    Cryptography algorithms
are of the very rare variety that the cost of developing a replacement
is apparently much higher than waiting out the patent.  If you're
confident that this invention is more like crypto and less like
compression then these alternative approaches are available,
otherwise, probably not.

Regards,
-t




> /Larry
>
> Lawrence Rosen
> Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
> Stanford University, Lecturer in Law
> 3001 King Ranch Road, Ukiah, CA 95482
> 707-485-1242  *  fax: 707-485-1243
>
>
>