Blanket Statements & IP Decision Making

I called out in my last blog entry the fact that my friend David was making a foray into blogging and he was welcomed by a fairly hostile, self-styled, “rant” by Dana Blankenhorn at ZDNET. First of all, Mr. Blankenhorn – the whole point of the blogosphere is hearing different people’s voices – even those you don’t agree with. Second, while you are also welcome to your opinion, it would be best to make sure you check your facts before pushing your rant too far.

Before you read any of my comments, I’d suggest looking at the lucid and well said response from David.

From my point of view, the real failing in Mr. Blankenhorn’s argument is his lack of appreciation for the history of standards beyond the software industry. Over the past 12 months I have been essentially getting the standards 101 and 201 lessons (someday I aspire to 301) on standards after having been immersed in the world of source code licensing for so long. A common failing for many in the technology (particularly software) sector is a belief that “standards” are a high-tech thing. Modern industrial standardization has been going strong for over 100 years now, and the concepts of standardization reach back to the earliest days of civilization (weights and measures, etc.). The body of law that governs modern standardization has come about over many years and applies to almost any industry.

RAND – or “reasonable and non-discriminatory” – represents a set of terms that have some common forms used throughout the world of standardization. Royalties – or the act of asking for payment by the provider of a given patent that has been included in a given specification – are only one term of many. Defensive suspension (you can use my stuff, but if you sue me you can’t use it any more), field-of-use limitation (you can use my stuff to create thingy-A, but if it turns out that you could also make thingy-B then we need to have a discussion about possible terms etc.), and a few others are all part of RAND.

This is important because Mr. Blankenhorn goes out of his way to say that RAND is,

“a licensing scheme that some proprietary firms have been trying to force into the Internet standards, in order to make it a permanent toll road…”

This is as much a statement of ignorance as opinion. There are many standards in core internet technologies and others in Linux or Unix that are licensed under RAND terms yet manage not to be evil or even mildly carnivorous. RAND as a concept is not inherently anything other than a mechanism that is commonly understood to encourage those with interesting ideas (rights-holders of inventions) to come to the table and share those ideas in such a way that they may be lucky enough to see them broadly adopted by the market.

All of this brings me to the core thought in this blog posting. A patent is property, according to patent offices in most developed countries (I have no doubt that there is a worthwhile debate to be had about the ontology of that property), as is a work that is copyrighted, as is a trade mark, as is a trade secret (properly protected, of course). So the real question is: what are we to do with these interesting islands of property?

I think we want to foster an environment where rights-holders have the ability to bring their property to bear in the manner of their choosing (providing that is done legally, of course). No one is holding a gun to your head saying, “You must contribute your invention to a standardization effort,” nor are they saying, “You must open source it,” nor are they saying, “You can’t share that with anyone…ever.” The most important thing is to have a plethora of choices for rights-holders to have in determining what the best course of action is on a per-technology basis. Some things should go under a broad promise like Microsoft’s OSP or Sun’s CNS or IBM’s patent covenant. Others should be brought to bear under royalty-free terms with RAND protections. Others still, under RAND with royalties. (There are whole industries where royalty-bearing standards are critical to the continued innovation cycles.) Or, you may choose to hold something close to your chest and bring it to market outside of any standard, based on the fact that it is unique and thus has value (basic economics of scarcity).

To me, the failing of many OSS-advocate arguments in the IP space is the use of blanket statements in which the desire of a rights-holder to take one action, such as the OSS licensing of some source code, means that ALL code produced by that creator should be similarly licensed. Or that, because Microsoft (as an example) provides 35 web services specs under an Open Specification Promise, ALL specs should be similarly licensed. If you are in business to make money, then it is not likely that you do anything under blanket terms (pricing, customer service, staffing, inventory, financing, partnerships…). Why would you limit yourself then when thinking about your most valuable IP assets?