Open Source Definition : can it be made explicit about non-copyright issues?

[Russell McOrmond]

On Wed, 14 Jan 2004, Alexander Terekhov wrote:

> Russell McOrmond wrote:
> [...]
> > Note: There are all these Halloween documents discussing the OSI
> > battle-of-words with Microsoft, but I wonder why there is no similar
> > discussion with IBM? 
> 
> Well, see
> 
> http://www.opensource.org/licenses/cpl.php
> http://www.opensource.org/licenses/ibmpl.php


  This doesn't constitute a discussion on the same scale.  Both Microsoft
and IBM have licensed relatively small parts of their software portfolio
(patents and copyright) via Free/Libre and Open Source licensing.  This
minor amount of Open Source licensing of software does not deal with the
problems these companies create for the Open Source movement.


  I will allow someone with a legal background to look at these licenses
and question whether they constitute Open Source patent licenses
considering they have field of use restrictions (Conflicts with OSD #3,
#7, #8).  I was not part of this mailing list when these licenses were
evaluated.  As I suggested in the earlier message I suspect that
evaluations thus far have looked far more closely at copyright clauses
than they have at patent clauses.

> http://europa.eu.int/comm/internal_market/en/indprop/comp/ibm.pdf

  "IBM believes harmonisation should occur along lines which endorse the 
  current practice and case law of the European Patent Office. We oppose 
  either a more restrictive or a more liberal approach to patenting."

  I am glad you provided examples of the problem I was trying to alert
people in this forum to.  The "current practice" of the EPO has been to
grant software patents on pure software (not software coincidentally part
of an otherwise patentable manufacturing process - a different situation
entirely) even though article 52 of the European Patent Convention
specifically excluded programs for computers, mental rules, mathematical
methods etc from patentability.  In other words, this position from IBM
was a clear statement in favor of legalizing software patents in Europe
contrary to the existing EPC, part of the general extreme
pro-software-patent lobbying position of IBM worldwide.


  You seem to be agreeing that the IBM position in policy discussions such
as this has been in favor of software patents (treating software as itself
a "manufactured good" to be treated similar to computer hardware).  This
position is in and of itself a position in opposition to Open Source.


  The Halloween documents describe the opposition that Microsoft has had
against Open Source.  I still do not see the information on the
OpenSource.org website describing the opposition that IBM has had against
Open Source.  Without documenting and better understanding this opposition
it will be unlikely that there will be a motivation for IBM to change.


  The branches of software creators which treat software as a manufactured
good ("Software Manufacturing") and Open Source can co-exist.  This has
has been the position of the OSI, but this co-existence is only possible
if lobby groups like IBM stop pushing for policies which favor only
"software manufacturing" at the exclusion of Open Source.


  When we discuss exclusive rights in the form of copyright (excluding
interface copyright of course) we are talking about a form of software
protection where many methodologies can and do co-exist.  When we talk
about software patents (or interface copyright) we talk about a form of
protection that protects "software manufacturing" at the exclusion of Open
Source and Free Software.


To see my policy suggestions from last year, see:
  http://www.flora.ca/patent2003/

  I wonder if IBM would support the suggestion that "fair use" (fair 
dealings in Canada) should be a defense against patent infringement claims 
and that use of royalty-free licensing offering users the right to "run, 
copy, distribute, study, change and improve the software" (in other words, 
was Free/Libre and Open Source Software) would trigger this fair use 
exemption.  While this is not an ideal solution like statutory exclusions 
of "information process" patents, it would deal with some of the worst 
cases we are currently dealing with.

> P.S. europa.eu.int/comm/internal_market/en/indprop/comp/eicta.pdf

  One company and organization at a time.  I would first like to see
members of OSI open more substantive conversations with IBM, and then
worry about these other organizations opposed to Open Source at a later
date.  The BSA and CompTIA have also published considerable literature
opposed to Open Source, but are not as visible as IBM in trying extract
benefit from the movement at the same time.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  -- http://www.flora.ca/russell/

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