Category: misc.

In the same vein as my earlier commentaries on Google comes this piece by James Grimmelman. He doesn’t comment on the actual substance of the net neutrality announcement. Instead he focuses on process, and his description of how google does things seem so dead on to me into how google that I think I’ll be citing repeatedly in the future. I won’t quote; it is worth reading the whole, fairly brief thing.

The one thing I’d add to what James says is that Google’s process actually usually works quite well; for every Wave, Buzz, and verizon deal, there are several things that work well. When it works poorly, we should generally allow the market to discipline them, as it has with Wave. The reason the net neutrality issue is so important is that it could represent a new barrier to entry, making those market mechanisms less effective and leaving us more at google’s mercy when their processes go bad in the way James describes.

It is extremely satisfying when you can see your work turn directly into a working product. I just played with last night’s test version of firefox, and as per roc’s blog post, it indeed contains the video support whose licensing I (and others here) were working on last week. In an ideal world, lawyers should play a very small role in product development, and in this case we were probably involved more than anyone wanted us to be. But that wasn’t to be, so I am proud I helped get it done, and done right, and that all firefox users will benefit from it in the future.

Hello Cambridge-based lazyweb! I am looking at network Acceptable Use Policies (AUP) for guest wifi networks, and I have been told that MIT’s AUP for their guest wifi network is particularly terrific- short, simple, etc original site. Can someone in Cambridge who happens to stumble by MIT check into the network and copy/paste the text and email me? I’d owe you a beer next time I’m in the Commonwealth. Thanks!

[edit later: it appears that MIT has removed the acceptable use policy from their guest wireless network. I applaud them for it. Thanks to the couple of people who tried to get me the AUP only to find that it is no longer required!]

I’ve written a brief piece on the open source law community over at opensource.com. May be of interest for those hackers who wonder if they have any lawyer/guardian angels, and if so, do they ever talk to each other?

“We are working well when we use ourselves as the fellow creatures of the plants, animals, materials, and other people we are working with. Such work is unifying, healing. It brings us home from pride and from despair, and places us responsibly within the human estate. It defines us as we are: not too good to work with our bodies, but too good to work poorly or joylessly or selfishly or alone.” —Wendell Berry, The Unsettling of America

“The strongest “copyleft” … is having a vibrant and active community” –Shaver, of shaverfacts fame, in mozilla.governance

More patent lessons- first on submarine patents (basics!) and then on how patent pools are licensed. I don’t really want to continue this series, but the past few days have been a good reminder that there is a lot of misinformation out there around patents.

To start with, OSNews wants to claim that there are no such thing as submarine patents anymore, relying on a very specialized, nuanced definition of submarine patents. Their definition is… well, it is internally consistent, but I’ve never heard the term ‘submarine patents’ used that way before, and if you define it that way you run the risk of thinking that submarine patents are no longer a problem. This is sadly not the case.

Most people define submarine patents not as patents which are unknowable (because of the PTO’s process), but as patents which are unknowable or effectively unknown and therefore can’t be dealt with effectively.

The problem here – with software patents in particular- is that they are so numerous, so broadly worded, and so inconsistently worded, that searching for them is like searching for a submarine in the ocean. It is incredibly difficult, incredibly expensive, and very frequently ineffective to look for the ones that could torpedo your software product. And so most of the industry doesn’t bother- they just cross their fingers and hope.¹

Patent pools like MPEG-LA’s are an attempt to avoid this problem, not by searching the ocean, but by bribing the submarines to surface and getting them to agree not to use their torpedoes. So they do reduce the risk of submarine patents, but they definitely don’t eliminate them- each company will still have to do their own risk analysis when they sign into a patent pool, to make sure they are comfortable with the risk from patents outside the pool.

It is worth noting here that patent rights are like copyrights, and not like trademarks: you can let them sit as long as you want without enforcing them (generally speaking.) This is another part of what makes submarine patents messy- merely using the technology in a very public way (like many companies do with MPEG) does not necessarily guarantee that there are no risks; it only means that if there are risks, they haven’t surfaced yet.

So, bottom line: if the OSNews article made you more comfortable about submarine patents, get nervous again. Using their technical definition, the risks are zero, but using the more common (and more reasonable) definition the risks are usually low but they definitely aren’t zero.

On the other point: Gruber said yesterday that Google, as an MPEG-LA licensee, would be protected if Ogg violates an MPEG-LA patent. This is possibly  correct, but highly unlikely. Companies who give their patents to patent pools don’t actually give them up completely- they typically only promise not to use them against very specifically described technologies. If you’re not that specifically described technology, the patent owner is completely within their rights to track you down on their own.

In the case of MPEG-LA, the patent license is almost certainly for implementations of MPEG codecs, not for implementations of any random video codec you want (like ogg.) So Google probably has some other reason they feel safe about ogg- it may be that they’ve done thorough research on the codec, or it may be that they have other cross-licensing agreements outside of MPEG-LA, or they may just be unusually tolerant of risk. Unfortunately, we can’t know, and they’d be crazy to tell us.

Again, like yesterday, I haven’t seen the MPEG-LA licensing terms; it is possible that they do in fact cover implementations of any random codec. But that would be very unusual.

1. One of the many, many ways in which software patents are broooooooken. [↩]

I’d love a thunderbird plugin (or really just a feature) that says “you were bcc’d on this email- are you sure you want to reply to all and accidentally disclose that you were bcc’d?”

(And yes, of course that means I did that today- pretty sure the first time in a very long career of email that I’ve done that. Doh.)

Visiting family for my birthday; if I don’t respond to your email it is because I am soaking in sunshine.