Posts Tagged software patents
If there’s one thing that is totally clear, is that Android is ravaging the smartphone market, and all those that are feeling the heat are trying to use the most innovative and transparent approach to stop it: sue Google and its partners out in the oblivion. Software patents, design patents, copyrights, plain trolling- anything goes if it can help in stop the Droid juggernaut. At the same time, Google is under attack for its delay in publishing the Honeycomb source code, attacked for the half-backed results that can be witnessed in some tablet products, all of this in an environment where Android phone makers are obtaining extraordinary revenues, in large part thanks to those contested products (Samsung comes to mind).
Of course, hindsight is 20/20 as they say, and it’s easy to “predict” that the extraordinary success of Android would have generated such a defensive attack. It is however at least predictable, given the extreme litigation of software companies, that patents would have been used as a blunt instrument to fend off competitors. Could things have been different? I believe so, and I also believe that Google made some errors in its decision, especially in trying to create a control point (the “Google experience”) instead of favoring a more long-term vision.
Let’s start from the beginning. Android is two things at once; from one side it is a collection of many, many different open source projects, some external, some Google-created, some heavily modified and adapted specifically for the purpose. There is a separate, private tree (at the moment the 3.x branch) that is also based on open source projects, but is at the moment internal to Google and the partners that decided to join its Open Handset Alliance. Some projects are clearly behind their open counterparts, especially WebKit, while at the same time maintaining substantial external off-tree patches that are extremely difficult to integrate like in the Linux Kernel. There is an additional layer of totally proprietary apps, that are installable only for those partners (and phones) that subjugate themselves to an additional set of requirements and licensing rules, something that for example caused lots of problems for Motorola and Google in the SkyHook lawsuit. This will probably continue, and will be the real battleground, given the fact that Android and iOS are clearly emerging as the leading platforms.
Could it have been different? I think so. And by releasing some degree of control, Google could have created a much safer and open environment, while sacrificing very little. Let’s start with the point that what Google really, really wants is an unencumbered rich internet-enabled platform, that is not constrained by third parties, and that it uses Google services. The reality is that Google lives off advertising (at the moment, at last) and is trying to expand it to other services, like enterprise mail, documents, and so on; there are two roads to do that: the first is to create a platform that is strongly tied to Google services, so that it is nearly impossible to escape its control. In doing so, however, you face the tension of the OEM and vendors that may want to switch services, or that want to push internally developed offerings. In this case, they will have nothing left to do but to go with the competition, or create their own variant (something that already happened) increasing the adoption costs.
The alternative is the “A rising tide lifts all boats” – make it a purely open source project, where there is a real distributed control, like Eclipse. Turn it to the Apache foundation. Make all the interested partners a part of the foundation or consortium, make the code public (with limited exceptions, like for prerelease hardware drivers) and try to track as much as possible the projects where you take things from. Apply a strict code contribution regime to strengthen your position against IP claims, and especially don’t turn it into a product. Yes, you read it properly- the code should be a strict open source project. This way, it would be extremely difficult for an external party to sue the “origin”, given the difficulties in identifying a directly derived infringing device; Google could have then (using this more sanitized and cleaner base) provided insurance through a third party for IP infringement claims, if the code base adopter would want to use such an opportunity (some may decide to fight on their own, of course). This implies that an Android OEM can substitute the Google services and use something else (that, by the way, is possible even now) but would have easily prevented most antitrust-based attacks. The purely open code base and the increased external participation would have further shortened the time-to-market for providing a new board to the marketplace, reduced adoption costs, and facilitated an external ecosystem of providers for Android based services.
Google could have at least avoided some of the worst blows, increased its credibility with the various OS communities, and reduced the cost of adopting Android for an OEM, pushing more and more the platform. This, in exchange for some of the tight control that currently Google exercise on the platform. Unfortunately, I think it’s too late for that; and we will still have to face the sad situation that the life of a mobile platform is dictated purely by judges.
Updated: despite the Business Insider claims, the list of motives is actually a perfect copy of those mentioned by Steve Ballmer in a CNN interview, and I also found that the list of motives for the claimed inferiority of Android is actually from 2008, as can be found here. I found quite funny that basically the same motivations apply two years later for a different OS (in 2008 it was Windows Mobile 6.5, a totally different operating system), and are quite similar to the list of motivations from MS to avoid open source – namely, inferior user experience, hidden costs and IPR risks. Maybe Microsoft has not changed so much as it would like to claim.
A recent Business Insider post provided, other than a nice retouched photo of Google’s Schmidt with menacing red eyes, a snippet of conversation with an anonymous MS employee that claimed that Android “free” OS is not free at all, and its costs are much higher than the $15 asked by Microsoft as licensing fees. Having had my stint on mobile economics, I would like to contribute some of my thoughts on what is actually implied by the MS employee, and why I believe that some parts of it are not accurate. Before flaming me as a Google fanboy, I would like to point out that I am not affiliated with Google, MS, anyone else (apart my own company, of course), and my cellphone is a Nokia. Enough said.
OEMs are not using the stock Android build. All Android OEMs are bearing costs beyond “free.” That goes with the definition of OEM – it is hardly a surprising idea. My gripe with the phrase is that the author had, conveniently, conflated the concept of “free” as “freely available operating system” with “free as in I have nothing to do, everything is done for me for free”. The second concept is actually quite uncommon, and I had never met an OEM product manager that believed in something like that. It reminds me a lot of the old taglines used in the infamous MS “comparisons”, that were – with blessings from all – sacked from Microsoft web site. So, in conclusion: yes, you will bear costs other than downloading Android from GIT. And – surprise – I am sure MS will ask for engineering costs for adapting WinPhone7 for any adaptation outside the stock image.
Lawsuits over disputed Android IP have been costly for Android OEMs. (See Apple/HTC, as just one example.) Microsoft indemnifies OEMs who license Windows Phone 7 against IP issues with the product. That is, legal disputes over the IP in Windows Phone 7 directed at OEMs will be handled by Microsoft. This goes a long way toward controlling legal costs at the OEM level. Ah, please, Microsoft – you are so friend of OSS, and you still drum the “IPR violation” song? Anyway, I am quite sure that indemnification can be quite easily acquired, probably from Google or from a third party. It depends on the kind of IPR that the OEM itself does have; in some cases such a patent safety scheme is uneconomical. It is, in any case, a business decision – Symbian did not had indemnification either (or only as an additional product) but that did not stopped Symbian from becoming the most widely used mobile OS.
Android’s laissez faire hardware landscape is a fragmented mess for device drivers. (For background, just like PCs, mobile devices need drivers for their various components—screen, GPS, WiFi, Bluetooth, 3G radio, accelerometer, etc.) Android OEMs have to put engineering resources into developing these drivers to get their devices working. The Windows Phone 7 “chassis strategy” allows devices to be created faster, saving significant engineering cost. It’s essentially plug and play, with device drivers authored by Microsoft. This (apart from the use of the clearly pejorative mention of “fragmented mess” is naturally true. It is also – another surprise – the reason of Windows success, namely the external ecosystem of hardware devices, mostly unpredictable, that were basically developed and managed outside of Microsoft control. After much bashing of Apple’s “walled garden”, now Microsoft seem to imply that the same model that brought them success is now useless, and that to win in mobile you have to adopt Apple centrally managed hardware experience. It may be true, or not – but I suspect that hardware manufacturers will be more happy to create many permutation and device models, designed for different price points and different users, in a way that would be incompatible with MS central control and central device driver development. What happens if I need to push on the market a device that deviates from the MS chassis? Will MS write the driver for me, for free? What if it doesn’t want to write it? The chassis model is nice if you are Apple, and are selling basically a single (or a few) models; if you are going to market with many hardware vendors, you are forcing the same, undifferentiated hardware on all OEM – and this is a great no-no. How are you going to go against competitors that do employ exactly the same model, bill of material, same procurement channel?
Also, this phrase is a clear indication that someone inside of MS still don’t understand what (real) open source is about. The amount of engineering necessary for creating a complex product out of OSS is substantially lower than proprietary alternatives, as I demonstrated here and here; the driver development effort can easily be shared among many different projects that use the same component, lowering the development costs substantially.
Windows Phone 7 has a software update architecture designed to make it easy for OEMs to plug-in their custom code, independent of the OS code. We’ve seen the delays due to Android OEMs having to sink engineering resources into each and every Android update. Some Android OEMs skip updates or stop updating their less popular devices. Because of the unique update architecture, Windows Phone 7 OEMs don’t need to roll their own updates based on the stock build. Costs are reduced significantly. This is another part that is, until Phone 7 is out, difficult to judge. It is a part that I believe stems from an underlying error: OEMs add code to differentiate and to push branded apps and services, not because they have to compensate for an OS missing functionality (especially now, with Android 2.2; Android 1.5 and 1.6 needed some addition from third parties because of lack of features). Carriers, once sold a device, are not that interested in providing updates – after all, you are already locked in a contract. I had seen no official documentation on why Phone7 can be so modular that no engineering is needed even for custom layers on top of the user interface – we will see.
Android OEMs need to pay for licenses for many must-have features that are standard in Windows Phone 7. For example, software to edit Office documents, audio/video codecs (see some costs here), or improved location services (for this, Moto licenses from Skyhook, just as Apple once did). Of course, all of these license fees add up. I like the concept of “must have” – it is widely different for every user and company. For example, I am sure that using Google Docs or Zoho (or Microsoft Web office, that is quite good on its own) would go against the “edit Office documents” part; as for the audio/video codecs, of course you have to license them… unless you use WebM or similar. Or, like many OEM, you are already a licensee for H264 and other covered standards- in this case, you pay around 1$ per device. As for other services: I found no mention of location services from MS, at least not in the public presentations. If anyone has more details on them, I would welcome any addition.
Windows Phone 7 supports automated testing. Android doesn’t. When OEMs hit the QA phase of the development lifecycle, it’s faster and less expensive to QA a Windows Phone 7 device than an Android device. Again: if you have a single chassis, or a few of them, testing is certainly easier. However, there are quite a few testing suites that allow (through the emulator) to provide a very good automated testing facility.
Finally, Windows Phone 7 comes with great user experiences in the Metro UI, Zune, Xbox LIVE, Exchange, and Visual Studio for app development. Creating these experiences for Android is costly. They’re not baked into the stock build of Android. Well, there are quite a few tools for app development on Android as well. How, exactly, Exchange should be counted as a great user experience is something I am not understanding well, but that is probably a limit of mine.
In synthesis, the new MS concept is “we do it like Apple”. I am not sure that this can work for anyone that is not Apple, though; first of all, because up to now product engineering excellence was not among MS most touted virtues, and because this will in turn go against the differentiation trend that OEM and telcos are pushing to make sure that their brand lines remain unique and appealing enough. How many Phone7 devices can a telco carry? 1? 2? It is possible to imagine a custom Android device for every price point instead – some carriers like Motorola and HTC are already pushing 5,6 devices and more, and low cost handsets are adding even more to the segmentation mix.
Just as LinuxCon ended, Oracle announced that it has filed suit for patent and copyright infringement against Google for its implementation of Android; as an Oracle spokesperson said, “In developing Android, Google knowingly, directly and repeatedly infringed Oracle’s Java-related intellectual property. This lawsuit seeks appropriate remedies for their infringement … Android (including without limitation the Dalvik VM and the Android software development kit) and devices that operate Android infringe one or more claims of each of United States Patents Nos. 6,125,447; 6,192,476; 5,966,702; 7,426,720; RE38,104; 6,910,205; and 6,061,520.” (some more details in the copy of Oracle complaint). Apart from the slight cowardice of waiting after LinuxCon for announcing it, the use of the Boies Schiller legal team (the same of SCO) would be ironic on its own (someone already is calling the company SCOracle).
The patent claims are:
- Protection domains to provide security in a computer system
- Controlling access to a resource
- Method and apparatus for pre-processing and packaging class files
- System and method for dynamic preloading of classes through memory space cloning of a master runtime system process
- Method and apparatus for resolving data references in generated code
- Interpreting functions utilizing a hybrid of virtual and native machine
- Method and system for performing static initialization
Let’s skip the patent analysis for a moment, and let’s focus on the reasons behind this. Clearly, it is a move typical of mature industries: when a competitor is running past you, you try to put a wrench in its engine. That is a typical move, and one of the examples of why doing things by the book in this modern, collaborative world is wrong. Not only that, but I believe that previous actions by Sun made this threat clearly useless – even dangerous.
Let’s clear the table from the actual patent claims: the patent themselves are quite broad, and quite generic; a good example of what should not be patented (the security domain one is a good example; look at the sheet 5 and you will find the illuminating flowchart with the representation of: do you have the rights to do it? if yes, do it, if no, do nothing. How brilliant). Also, Dalvik implementation is quite different from the old JRE one, and I have strong suspicions that the actual Dalvik method is substantially different. But, that is not important. I believe that there are two main points that Oracle should have checked before filing the complaint (but, given the use of Schiller&Boies, I believe that they have still to learn from the SCO debacle): first of all, Dalvik is not Java and Google never claimed any form of Java compatibility. Second, there is a protection for patents as well, just hidden in recent history.
On the first point: in the complaint, Oracle claims that “The Android operating system software “stack” consists of Java applications running on a Java-based object-oriented application framework, and core libraries running on a “Dalvik” virtual machine (VM) that features just-in-time (JIT) compilation”. On copyrights, Oracle claims that “Without consent, authorization, approval, or license, Google knowingly, willingly, and unlawfully copied, prepared, published, and distributed Oracle America’s copyrighted work, portions thereof, or derivative works and continues to do so. Google’s Android infringes Oracle America’s copyrights in Java and Google is not licensed to do so … users of Android, including device manufacturers, must obtain and use copyrightable portions of the Java platform or works derived therefrom to manufacture and use functioning Android devices. Such use is not licensed. Google has thus induced, caused, and materially contributed to the infringing acts of others by encouraging, inducing, allowing and assisting others to use, copy, and distribute Oracle America’s copyrightable works, and works derived therefrom.”
Well, it is wrong. Wrong because Google did not copied Java – and actually never mention Java anywhere. In fact, the Android SDK produced Dalvik (not Java) bytecodes, and the decoding and execution pattern is quite different (and one of the reasons why older implementations of Dalvik were so slow – they were made to conserve memory bandwidth, that is quite limited in cell phone chipsets). The thing that Google did was to “copy” (or – for a better word – inspire) the Java language; but as the recent SAS-vs-WPS lawsuit found, “copyright in computer programs does not protect programming languages from being copied”. So, unless Oracle can find pieces of documentation that were verbatim lifted from the Sun one, I believe that the copyright part is quite weak.
As for patents, a little reminder: while copyright covers specific representations (a page of source code, an Harry Potter book, a music composition), software patents cover implementations of ideas, and if the patent is broad enough, all possible implementation of an algorithm (let’s skip for the moment the folly of giving monopoly protection on ideas. You already know how I think about it); so, if in any way Oracle had, now or in the past, given full access to those patents through a licensing that is transferable, Google is somehow protected there as well. And – guess what? That really happened! Sun released the entire Java JDK under the GPLv2+classpath exception; granting with that release full rights of use and redistribution of the IPR assigned on what was released. This is different from the TCK specification, that Google wisely never licensed; because the TCK license requires for the patents to be transferred to limit the development to enhancements or modifications to the basic JDK as released by Sun.
But, you would say, Dalvik is independent from OpenJDK, so patents are not transferred there. So, include the code that is touched by the patents from the OpenJDK within Dalvik – compile it, and make a connecting shim, include it in a way that is GPLv2 compatible. The idea (just an idea! and IANAL of course..) is that through the release of the GPL code Sun gave an implicit license to embedded patents that is connected with the code itself. So, if it is possible to create an aggregate entity of the Dalvik and OpenJDK code, the Dalvik one would become a derivative of the GPL license, and would obtain the same patent protection as well. That would be a good use of the GPL, don’t you think?
What will be the result of the lawsuit? First of all, the open source credibility of Oracle, already damaged by the OpenSolaris affair, is now destroyed. It is a pity – they have lots of good people there, both internal and through the Sun acquisition; after all, they are among the 10 largest contributors to the Linux kernel. That is something that will be very difficult to recover.
Second, Google now has a free, quite important gift: the attention has been moved from their recent net neutrality blunder, and they are again the David of the situation. I could not imagine a better gift.
Third, with this lawsuit Oracle basically announced the world that Java in mobile is dead. This was actually something that most people already knew – but seeing it in writing is always reassuring.
Update: Miguel de Icaza claims that “The Java specification patent grant patent grant seems to be only valid as long as you have a fully conformant implementation”, but that applies only to the Standard Implementation of Java, not OpenJDK. Sorry Miguel – nice try. More luck next time.
Update 2: cleaned the language on the phrase on patents, ideas and implementation that was badly worded.ù
Update 3: clarified the Dalvik+OpenJDK idea.
Ah, the morning aroma of a freshly brewed flame war… With our restless Matt Asay that sternly observes that in the free software/open source war, open source won and we are all the better for it. Of course, this joins the rack of those that consider Richard Stallman a relic of a passed era, or the thoughtful comments of my favourite thinker, Glyn Moody, or the pragmatic and reasoned views of Matthew Aslett of the 451 group.
If there is one thing that emerges clearly from all these discussions, is that fundamentalism is wrong. It is wrong when it is spelled “OSS is better”, it is wrong when it claims “Microsoft is better” without any reasoning. Because rational thinking should be the basis of discussion, not religion. This is not to say that religion or moral motivations are bad- but beliefs should be recognised beforehand, to avoid turning any discussion into a flame war. That’s why I may feel at ease in criticizing Stallman for what I perceive as personal attacks, and at the same time recognize the fact that without him and the GPL the free software and open source world would be much less developed and relevant.
My perspective is simple: every user, developer, administrator that depends on software (and basically everyone does, today) should think before using a software or service, and understand who control it, and if this “who” is not the user, what can happen. It is not just a question of “religious beliefs” but practical thinking: is the software yours? Does the service you are using gives you the opportunity of moving somewhere else? What happens if the developers are not going in the direction you need?
If we consider this as the basis for discussion, lots of arguments in the OSS/FS camp become much simpler. The crusade against software patents is a way of defending the rights of use of the end-user against arbitrary legal attacks; in this sense, the only real reason for being not happy of having something like Mono is not the fact that it is a Microsoft “standard”, but the fact that it is probably covered by unknown patents. The same thing applies for Flash- most people is dependent from a single company for what amounts as a platform, still not replicated by OSS alternatives (like Gnash) and in any case potentially covered by patents not only by Adobe, but by many other companies as well. The “victory of pragmatism” that Matt proclaims is not actually related to FS and OSS (that are the same exact thing) but the general overcoming of emotional based arguments, that is absolutely a positive thing.
But the “new pragmatism” should also be viewed with suspicion, exactly as the claims that free software is “better” without reason. I will make the example of Mono: now it is pushed as a way to overcome what is equally proprietary, that is Flash. What happens when Microsoft stops promoting it? It is OSS, s0 it can theoretically go on forever, but very few will risk infringing patents with it, and so it will remain more or less limited to those shops already using .NET elsewhere (thus having paid for the right of use), limiting its growth potential. The scenario is not so unbelievable, after the unveiling of a real Silverlight port to Moblin, that makes Mono more or less redundant. Some “open core” systems suffer of the same problem: the user is forced, by the proprietary part, to abide to whatever decision is made by the vendor, independently of what OSS license the “open” part is licensed with.
The uncritical embracing of online services is similarly flawed: what happens if the company goes bankrupt, or discontinue the service? If you use EC2, you can always create your own infrastructure using Eucalyptus and continue your work. Can you say the same of all the services that are being promoted right now? Can you get a complete copy of your data, move it somewhere else?
Control is what really matters, on-premise and online. Who, how such control is performed, what it may affects. You may prefer the ethical angle (like Stallman did) or the economic angle (like I do) but the end result is the same, exactly like free software and open source are the same. The critical aspect is being able to assess this control and weight if the lack of control is compensated by the features you get (which is reasonable) or what kind of risk are you accepting in exchange. You like the integrated set of features proposed by Microsoft? That’s good as long as you know that some of the actions that they did in the past were not exactly transparent, and that your control of their offering is very limited. You like Google? Good! Just understand what happens if Gmail does not work. You prefer open source? Good! But with the increased control you get with it, you also get responsibility and increased effort.
Always ask yourself: it is your software, or not? Think about it, and don’t let the question disappear from your mind, because your business may depend on it.
Something not related to FLOSSMETRICS or other research areas, but fun nevertheless: while reading the MSFT/i4i Memorandum Opinion and Order, I just caught the following snippet that in my opinion closes very efficiently the discussion about “patent trolls”, that is companies that ratchet patents to extract money from (potentially) infringing companies. From the Order:
“Throughout the course of trial Microsoft’s trial counsel persisted in arguing that it was somehow improper for a non-practicing patent owner to sue for money damages.” (p.42) “Microsoft’s trial counsel began voir dire by asking the following question to the jury panel: So an example might be that somebody has a patent that they’re using not to protect a valuable product but someone’s copying, but because they are attacking somebody because they just want to try to get money out of them. So it fits, for example, with the litigation question Mr. Parker asked. So if somebody felt that — let’s take this case for an example. If somebody felt that the patents were being used in a wrong way, not to protect a valuable product but a wrong way, could you find that patent invalid or noninfringed?”
“THE COURT: I understand that you just told the jury if somebody was using the patent not to compete, that that was the wrong way to use the patent?
MR. POWERS: No, not to compete; just to get money, not to protect anything. That’s what I asked.”
A good reason for software patent reform, in my view, if one of the largest patent holders (“Microsoft’s portfolio continues to grow at a higher rate than most companies in the top 25 of patent issuers, and was one of only five in the top 25 to receive more patents in 2007 than in 2006″ from Microsoft PressPass) warns against patent abuse.