If You're Not Mad, Why You Wear a Napoleon Hat?

I wanted to keep a low key on that, but the news hit the press and the avalanche started mounting.

I have submitted for approval to OSI a license on behalf of my good friend and client Mr. Leonardo Chiariglione, convenor of the ISO/IEC JTC1 WG11 (also known as MPEG).

Linux Journal, followed by many others, has a story:

[…] are there ever circumstances when software patents that require payment might be permitted by an open source licence? That's the question posed by a new licence that is being submitted to the Open Source Inititative (OSI) for review.

It arises out of work to create a reference implementation of the MPEG eXtensible Middleware (MXM) standard. This aims

to promote the extended use of digital media content through increased interoperability and accelerated development of components, solutions and applications. This is achieved by specifying

1.The MXM architecture
2.The MXM components (by reference)
3.The MXM components APIs
4.The MXM applications API
5.The inter-MXM communication protocols

More details can be found here.

The proposed licence is closely modelled on the Mozilla Public Licence (MPL). In his submission to the OSI, the well-known free software activist Carlo Piana explains the key difference:

As you will notice, we have removed some of the patent conditions that existed in the MPL. This is because none of the contributors would have accepted to encapsulate their patents in a FOSS license without the ability to ask for a license separately from the copyright. This is a basic tenet that is enshrined in the so-called ISO/IEC Directives for the development of International Standards. Some of you might know about my public stance against software patents and my approval to some of the licenses which impose implied licensing to or patent retaliation against all who distribute FOSS software while relying on patent protection. However, the sad truth is that if we did not offer a patent-agnostic license we would have made all efforts to have an open source reference implementation moot.

What!? Carlo Piana speaks software patents, Carlo Piana speaks “open source”? He must be out of his mind, nuts, off the rocker (my English stops here, but surely you can suggest more insult).

Well, I am not. Let me explain.

I was asked by Mr. Chiariglione to help out in drafting a license which could accommodate combining an “open source” model with the need for the patent holders to retain their patents rights without releasing them freely. I said that this was an impossible task, but I could produce something close enough. Then I was asked to submit it to OSI for approval, and what we had written (some small amendments to the Mozilla Public License) was working under copyright and patent laws, but not under the Open Source Definition. However I am not the ultimate expert of OSD, interpreting this as a legal text is within my reach, I reckon, and thus I have asked myself whether it could be possible to comply with the letter of the OSD, by more cleanly separating copyright from patents. From my submission:

I have asked myself if this could work and if it complied with the OSI definition. My final conclusion is that if the BSD family is considered compliant, so shall be the MXM, as it does not condition the copyright grant to the obtaining of the patents, just as the BSD licenses don't deal with them. And insofar an implementer is confident that the part of the code it uses if free from the patented area, or it decided to later challenge the patent in case an infringement litigation is threatened, the license works just fine.

Am I saying that having software patents attached to a reference implementation is fine? I am not, they should not. My public stance is for patent free standards, and I will not stop advocating against software patents and against patent encumbered standards in particular. What I say is MPEG and the other ISO standards are patent encumbered. I say that this is not going to change in the short term, unless we make people aware of the problem. I have invested much of my time to fight against adoption of the ISO/IEC IS 29500 (AKA OOXML) and I have learned a lot from seeing things from inside. I have presented and even had a public argument with a representative of Microsoft in Geneva about this, downstairs from the Ballot Resolution Meeting. You can see a picture of mine in the big anti sw-pats flag that was brought before the Europarliament when the CII Directive was being discussed. I don't miss a chance to present against sw-pats.

So let me be more clear: software patents are patently against Freedom, Digital Liberties, competition, progress, and detrimental to the software industry at large, especially SMEs (but the Big Guys have learned how it is detrimental also to them). The sooner they are abolished, or possibly replaced with something more sensible, the better.  My fellows from the industry could be in disagreement, and have a less draconian stance. But this is my opinion, even if without software patents a good chunk of my daily work would disappear.

A final remark. I don't use the words “open source” lightly. In this context I could not use another wording because I was asking people to say that the license is… an “open source” license. So the question “is this 'open source'” is out of the realm of my concerns, usually; it became relevant only in this case because I was expressly asked to follow the submission procedure. Usually, I don't care much about a license being “approved”, and there are simply too many licenses. The only licenses that should exist, to me, are the GNU GPL, the GNU LGPL and the Affero GPL, possibly in their version 3 or any later version. If you ask me if the license is Free Software, I would say “very likely, no”. If you ask me “is your license worth spreading?” I would say “of course absolutely not!”, and to push for another license was never within my instructions. As opposed to open up the ISO bunch to the concepts of copyelft, which is something I think can be achieved and beneficial in the long run.

So, as you see, I am still not entirely mental. And I am not wearing any Napoleon hat, because I am Julius Cesar! Alea jacta est!

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