Open Source Initiative

According to filings made by Novell

[On] February 2, 2011, each of [CPTN Holdings] and Novell received a Second Request from the DOJ regarding the sale of certain identified patents and patent applications to CPTN contemplated by the Patent Purchase Agreement. The Second Requests have the effect of extending the waiting period under the HSR Act until 30 days after both parties have substantially complied with the Second Requests, unless the waiting period is earlier terminated. Novell is in the process of gathering information to respond to this Second Request and is continuing to cooperate fully with the DOJ in connection with its review.

The Open Source Initiative commends the US Department of Justice for taking this important step to promote innovation by issuing a second request and deepening the investigation of CPTN's acquisition of Novell's patents. As we have stated, the history is clear: patents have been—and are likely to be—used by CPTN and its members to create fear, uncertainty and doubt concerning open source software, raise competitors costs and threaten customers. We trust and hope that following a thorough investigation, the DoJ will impose whatever measures are necessary to ensure that CPTN does not harm the commercial open source development model or market competition.

January 19, 2011 (update 2) - The Antitrust Division of the US Department of Justice has acknowledged receipt of the following correspondence (with attachment):

I am writing to you this morning in my capacity as President of the Open Source Initiative, a US 501(c)3 non-profit organization. Last month the OSI filed a statement with the German Federal Cartel Office (FCO) outlining our deep concerns about a proposed transaction whereby four companies, Microsoft, Oracle, Apple, and EMC, would create a new non-practicing entity (NPE) to acquire and hold Novell's entire portfolio of 882 patents. Since making that filing, we have been joined by the Free Software Foundation (FSF) and have updated that statement to represent that both our communities--the open source community and the free software community--are concerned that CPTN represents a potential broadside not against any particular product in the market today, but against one of the only viable sources of competition for these companies in software today: the free, libre, and open source software (FLOSS) communities.

Attached is our joint statement that reflects both our consensus thinking on the subject and our joint appeal that DOJ investigate the true purpose of CPTN.

If there is any other information you require from myself, any OSI board member, or the OSI as a whole, please do not hesitate to let us know. Thank you very much for your consideration.

Michael Tiemann
President, Open Source Initiative

Following up on an earlier blog posting, Indian Open Standards Policy Finalized, I read an article published in the The Hindu, one of India's leading newspapers, about the concrete benefits of this policy. It also provides a very meaningful template for open source advocates to see how well an argument can be made with the proper framing of facts. Here is a quote from the third paragraph:

SCOSTA [the Smart Card Operating System for Transport Applications] was a standard developed for smart card-based driving licences and transport-related documentation by different State governments. It was developed by the National Informatics Centre in collaboration with the Indian Institute of Technology, Kanpur. Despite attempts by proprietary lobbies to make the body opt for a proprietary standard, the NIC and academics went ahead and developed an open standards, one that comprised technological specifications that were entirely royalty-free, and put up the specifications on their website. By doing so, they made a huge impact on the entire market.

Venkatesh Hariharan reports:

After three years of continuous running battles, India's Department of Information Technology has finalized the national policy on Open Standards. Over the last three years, we worked with our friends in government, academic, civil society and the media to push the Indian government in favor of a policy that mandates a single, royalty-free standard. With this, India becomes another major country to join the growing open standards movement.

India's e-governance standards portal is at http://egovstandards.gov.in/ and this is the link from which you can directly read the policy document.

Of particular interest is Clause 4.1.2:

The Center for Strategic & International Studies updated their latest survey of Government Open Source Policies for 2010, and it is again an outstanding report. From the introductory note:

Nearly six years ago Google launched a new project to promote and support open source software development: Google Code. Back in those days we had Intel Pentium 4 processors that ran at 533 MHz (or 800 Mhz if we were lucky), and contained 125M transistors using a 90nm process. Amit Deshpande and Dirk Riehle, working for SAP Research, uncovered evidence that in 2004 there were approximately 125M source lines of code (SLOC) of open source software in the world. Fedora Core 3 had 1652 packages, and SE Linux policies protected only 13 of them (apache , dhcpd, mailman, mysqld, named , ntpd, pegasus, portmap, postgresql, snmpd, squid, syslogd, winbind). Six years is a long time ago! At that time, Google Code did not treat all OSI-approved licenses equally. Some were definitely more equal that others. But a lot can happen in six years...

Last month I participated in the third annual CONSEGI conference in Brasília, Brazil. The first CONSEGI conference was organized in 2008, and though it was organized by and for the Brazilian government, it speaks loudly and clearly with an authentic open source voice. In that first meeting, the CONSEGI declaration stated their disappointment in the appeals by several of their ISO/IEC national bodies being dismissed by the ISO and IEC technical management boards in the Standardization of Office Open XML, and criticized the ISO/IEC for "inability to follow its own rules". The declaration called into question credibility of ISO/IEC, with the signers asserting that they will no longer consider ISO standards to be automatically valid for government use. In 2009, CONSEGI hosted the 3rd International ODF Workshop and established the Brasilia Protocol, which commits its signatories to use ODF internally, with each other, and ultimately in their electronic interaction with third parties and the public. (I was a signatory to that protocol representing Red Hat.) And so I was very excited to see what CONSEGI 2010 would set as its agenda.

The "Project Description" of CONSEGI 2010 contained this paragraph which really highlights the answer to the question "why open source?" in Brazil (or in any other Democratic government):

The citizenship vision that goes under CIT (Communication and Information Technology, aka ICT) public politics of the Federal Government has as reference the collective rights and not only the sum of the citizen individual rights.

Think about that for a moment or two...

Last year I attended Open World Forum in Paris. It was a lively conference with broad representation of industry leaders, community organizers, and government officials and administrators. The warm reception by the Mayor's office in Paris (at the Hôtel de Ville) underscored what has become increasingly obvious in the analysis of economic statistics: open source software is appreciated, in Paris, France, and Europe. My reflections on the subject of last year's topic, the digital recovery, were captured in the blog posting From Free to Recovery. This year, the agenda of the Open World Forum (Sept 30-Oct 1, 2010) is more ambitious, and I am pleased to be on the program committee, an editor of the 3rd edition of the FLOSS 2020 Roadmap document, as well as one of the organizers of a think-tank session focused on, and beyond, the role of open source software and the future of the BRIC thesis.

When I started working on GNU C++ in 1987, I could almost feel the course of history changing with every line of code I wrote. When I started Cygnus Support in 1989, I was convinced that it was only a matter of time before companies began to realize that proprietary software restrictions did nothing to help their competitive advantage and everything to harm it. And though early funding for my work came from government agencies (US DARPA in 1987 and French INRIA in 1988), I never quite expected to be visiting and promoting open source in Malaysia [short version] [longer version]. Yet such is the reach of open source software! Now the Government of Malaysia proudly reports an astonishing 97% adoption rate for open source software in this new report:

It was more than a month ago that I started my pilgrimage to Texas to prepare for and participate in a court case in East Texas, but it still seems like only yesterday. As Groklaw aptly reports, opposing counsel pressed not only the question of whether Red Hat and Novell infringed three patents originally issued to Xerox corporation (which later fell into the hands of a non-practicing entity), but argued before the jury that there was a fundamental conflict between property rights and open source software--a conflict they wanted the jury to resolve in their favor.

While I have been processing the events of the trial, playing and replaying lines of questioning over and over in my mind, I've barely been able to keep up with the extraordinary changes to both the competitive landscape and the competitive rules of the technology industry. Having escaped from one rabbit-hole, I appear to have fallen down another directly.