Monthly Archives: June 2008

So what happens if we kill the “music industry”?

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Short answer: Nothing.

And I am sorry if Gene Simmons thinks the contrary.  Radiohead’s bassist’s u-turn on these issues is quite surprizing, but some of you know how the saying goes: “Money talks…”

More seriously, should we care about the “music industry”? I may be very “French” in this matter, although my country is quite misrepresented in its culture by our today’s government, yet I find that the two terms music and industry are bit contradictory. Not too much, I also don’t find the existence of a music “industry” not completely odious. But I do find it increasingly irrelevant.

The problem that is at hand here is not so much a matter of business model, or  the scandalous lawsuits from the RIAA/MPAA/SACEM, etc. It is a problem of actual relevance of a whole set of businesses in the digital millenium. That’s all, and that’s a lot. I am not going to discuss these issues, as this article is more of a “point-of-mood” than anything else. But I’m just wondering why some make a whole fuss about the music industry allegedly disappearing and not about, say, millions of people having their daily meal disappearing because of global speculation and the resulting food shortages; what about the mining industry in Europe? And what about the automotive industry in the U.S.A ? And the small retailers whose business is disappearing because of competing supermarkets? That list could be a long one, so I’m stopping here.

Really, I just don’t understand the whole point about the music industry. Is that because of the culture? But the music industry disappearing or striving will not impact the artistic creation in any way. Art has always existed, does exist and will exist as long as we’re humans. And viable, alternative models exist, not necessarily involving money such as Jamendo, Magnatune, and others  Perhaps the only thing there is to understand about the music industry is that this is an industry that does not want to change its business model, and refuses to question its constituencies and its very nature. In short, if some can complain about workers’ union, I complain about the music industry. They have become a nuisance, and a group of special interests who only protects the ones who vouch for them.

This has nothing to do with art, and very few with culture. In fact, the announced demise of the music industry, if at all true, sounds like good news for the future: What will disappear is the industry, but never the music…

Comparing Red Hat’s patent settlement with the Microsoft-Novell agreement

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I have frequently expressed myself about the patent and business agreement between Novell and Microsoft. One and a half year later, this agreement continues to concern me and many others; last week however, we learned about another patent agreement, or rather a legal settlement  on software patents involving Red Hat and two other companies that are sometimes referred as « patent trolls ».

As I commented on Novell’s patent agreement, I felt it would also be interesting, if not only fair,  to comment on Red Hat’s patent settlement. NB: IANAL.

What happened in short:
Some time ago, some small and unknown companies sued Red Hat on the basis of alleged patent infringements. The issue at hand was theoretically a group of patents filed by FireStar Software covering some technology found in relational databases and was claimed to directly affect Hibernate and Jboss, two Red Hat solutions.

At the time the lawsuit started there was wild -but by no way foolish- speculations going on about the possible involvement of Microsoft behind that lawsuit. To this day, such an involvement has not been proven. Yet, it is known that Microsoft has so far made several public   assertions on patents it would own on Linux and several other Free Software. The difference between these claims and the legal settlement at hand is of course that Microsoft has so far threatened, but never showed what it had in its satchel. Are they bluffing? Probably. But by threatening fear, uncertainty and doubt can be easily spread and disseminated, which is exactly the reason why some users would not adopt FOSS.

Back to the Red Hat’s patent settlement. The outcome of the settlement  can be (simply) explained through two points:
Red Hat successfully demonstrated that the patent claims and the patents filed were invalid, and it demonstrated it through prior art. That means, there was a thorough research and  subsequent evidences showed that technologies claimed to be patented had already been invented before the companies owning the patents had even filed the first application. In short, what the plaintiffs had claimed they had invented turn out to be bogus.
Red Hat negotiated not just the mere logical conclusion stemming from facts established in court, it went a big step further, and that’s what has made this settlement so special. Red Hat extended the immunity related to the litigious patents to both its customers, but also to the whole community (some might say the universe). Even better, this settlement not only covers Red Hat and Fedora platforms, it covers anybody using the problematic software (the software apps that were allegedly infringing on the patents) wether or not it is using Red Hat. The settlement also extends this protection to any version of the covered software apps past, present and future.

Now let’s take a step back and compare it to the patent agreement between  Novell and Microsoft:
Novell did precisely not sign a patent agreement with Microsoft debunking any claims or myths related to FOSS infringing Microsoft’s “intellectual property”. It implicitly did just the contrary: Microsoft and Novell were teaming up to “protect” Novell customers against patent claims made by…Microsoft.
The agreement was only covering Novell customers (not even OpenSuse users) and was at the same time contradicting the GPL (v2). Red Hat’s settlement does not seem to conflict with any version of the GPL as it places no burden or extra deeds on users and developers of GPLv3 software (More on that later).
There was no prior art, no litigation, and perhaps as important as the rest, the Novell-Microsoft agreement involved money. Lots of it . On the other hand, Red Hat received to my knowledge no payment for the settlement and as a future outcome, no strong incentive to do business with the plaintiffs and have its existing customers sign some dubious “software patent insurance”.

So what made this patent settlement really historical? In my opinion,  the extension of the effects of  the settlement to the universe has made that settlement historical, and also provides the community at large with a strategical framework to deny any allegation of software patent infringement.

However,  it should be noted that what this settlement was all about was not about denying the existence of software patents. Remember that software patents do exist in North America and other parts of the world, and that some large corporations out there are working hard at pushing them in the European legal framework as well (and they don’t care about what people think, because Die Partei had immer Recht. ) What this settlement did was to take the patent threat away from nontrivial Free and Open Source software applications by demonstrating prior art, essentially demonstrating how the whole filing proved ignorant of the state of the art or perhaps, as some will point out, how disingenuous the whole adventure was.

Last but not least, one might wonder how “compliant” or “compatible” the results of the  settlement are in respect to the terms of the GPL v3. Groklaw has a pretty good post on this issue. Once again IANAL but here are some thoughts about this.

Contrary to what can be read here and there, the GPL v3 does not deny the existence of software patents. That would be stupid, as the GPL has been designed to live in a legal environment where such patent claims would be made against Free Software. What it does however is denying software patents the possibility to infringe on the users and developers’ freedom and ability to run, use, modify and redistribute software. If the software cannot be redistributed without some form of immunity in regard of software patents, then a poison pill option exists. Red Hat’s settlement does not apply here. What Red Hat did was “clean” patent busting: they demonstrated prior art first, and then essentially killed the patents by extending the immunity to those patents to anyone using the problematic software apps. That’s how historical it gets.

I am, just like many others, left not wholly satisfied by this. I am very happy of course, of the outcome of this lawsuit, but I know that the real issue at stake is software patents and that  what will really put all these issues to rest, ultimately, shall be the end of software patents.

Miscellanea for Mid-June

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Some random stuff for this week-end. Hope it is sunny for you all. I’m writing -as usual- from Paris but my thoughts are geared towards Le Mans’ s 24 hours car race. Go Corvette!

- Are the GPL and mergers compatible? That’s the topic I have recently discussed on FOSSBazaar .

-OpenOffice.org does host a growing number of users forums (located here)  and it shows.

- The road to a new splashscreen. Join the contest and help us choose the best splashscreen for the upcoming OpenOffice.org 3.0 More information here and there.

Enjoy your week-end!

Choice, Innovation and… Appeal?

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It seems the Skeleton-in-the-closet Season has come. Yesterday, South Africa was leading what became an unprecedented round of appeal against the -dare I say it- Microsoft Office Open XML format. But just when South Africa had filed that appeal, the news came that Brazil and India were voicing similar complaints.

Today, Venezuela filed an appeal against the OOXML standardization process. At this stage, one more country appealing will not matter that much, and there are some indications that the deadline is over. What matters though, is that one country had actually appealed against an entire standardization process, and according to the ISO itself, that is unprecedented. You will of course remember that we have not seen the OOXML standard’s final specification yet. As some might think this nuisance is of secondary importance, it should be reminded that there is now no more possibility of appeal on the basis of the specification itself, since the standard is not published.

The whole story thus turns out to be a waste, made up of fake promises in hot air delivered by a bunch of con artists. A waste that was thought of at first as a brilliant plan to counter the single biggest threat to Microsoft’s dominance on the Office market, ODF. Oh, it almost worked, after more than a year of sweat, hard work, hard delusion, and pressures on a worldwide basis. And mind you, it still could work. OOXML may not be published (it could have been at least handed over to the national standards organizations who asked for it several times, as it exists, probably locked in a drawer at the ITTF), it may not even be implemented, but it is there, lurking around, used as a scarecrow against CIOs and DIS, etc. The subtle part in that scarecrow tactic is that the promise of native ODF support inside MS Office could be an empty one, or could end up harming ODF just by resulting in a native, but bad support of the open standard.

Perhaps one of the most overlooked aspect of the whole OOXML story is the financial side of the issue. When everything is said and done, one legitimate question coming from the Microsoft shareholders will be about the ratio between the resources wasted (and as of resources, you can include not just money, but also the wasted time, roadmaps, and of course public image) and the final outcome. This ratio is, I think, unfavourable to Microsoft and shareholders tend to be … demanding , to put it mildly.

The financial equation they could eventually think about is this one: how long is this fight going to last, and looking closer into it, why is the same strategy being implemented across the whole set of Microsoft’s technologies, namely through XPS vs PDF, SilverLight vs Flash and .Net vs the Internet. Rather than fighting competition, pushing competitors to bankruptcy and trying to fool around with legislation and processes (such as the ones from ISO), perhaps the time has come to embrace the competition, and walk the line of the industry. Shareholders have had their fair share of Microsoft’s “innovation” and other “ vistasters”.

I’m about to end there; after all, we’re still waiting for Microsoft to join the OASIS ODF TC, so it would be unwelcome for me to criticize them too much now and dispel the good will that seemed to have struck them lately. But please take a look at the homepage of openxmlcommunity.org . I wish these words could work inside the brains of some at Redmond, now that OOXML is more or less dying. Better late than sorry…

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