Free Software friendly patent pools

Of course, we do not have a definitive proof - we (including you) could ask some authoritative by-then-subscriber on the FFII list, and he could publish a public statement

Actually a statement by an FFII board member was published here on LWN at the time. That is someone with whom I never got along well, and his email talks about all sorts of issues that don't deny the fact Red Hat did that last-minute lobbying together with IBM, but as you can see, the authenticity of the email wasn't questioned by that board member -- and he was on that mailing list, too (all of the core activists were). That statement was made two days after I published the email in question, and as the statement clarified, because of the fact the FFII's name got mentioned (which was only because of that list email).

However, I would like to see you comment against the weaknesses of the MS Community Promise [6][7] with the same strength as OIN weaknesses. While [7] sees MS as a bogeyman, there are valid points there (which you implicitly acknowledge here [8]). You complain more against OIN because it has a double face, which MS hasn't. Fine. Now MS might be doing something similar in its support to Mono, seemingly. Could you comment on that?

There are reasons for that focus:

1. The Microsoft Community Promise is one of countless patent promises made by companies, while the OIN is the only entity of its kind in the open source context.

2. Concerning patent promises/pledges, Slashdot published an op-ed of mine five years ago. I link to that from my current blog and repeatedly refer people to it. I'm not aware of any aspect of the Microsoft Community Promise that wouldn't have been addressed by me already in that general piece. I'm also unaware of any shortcoming of the Microsoft Community Promise that other company promises with respect to patents don't have.

3. There's already significant awareness for the limitations of those pledges/promises, especially since the IBM vs. TurboHercules incident. However, there isn't a lot of knowledge out there about the OIN. For instance, even an open-source-specialized journalist and former LinuxFoundation employee like Brian Proffitt recently wrote an article in which he talked about only one of the OIN's three functions and consequently arrived at a completely wrong conclusion. Those company promises are much simpler in nature since they serve only one purpose.

4. Pledges/promises like the Microsoft Community Promise are unilateral acts, while the OIN is plurilateral. Two different entities relying on a company promise don't enter into a contractual relationship with each other that way; however, Oracle and Google, by becoming OIN licensees (not even members, just licensees) established a cross-license between the two of them, and that cross-license now proves unhelpful.

Google is not suing anybody at all (just defending software patents).

The questions of "not suing" and "defending" (if you mean defensive use) are actually separate. Whether or not a company sues is the wrong indicator.

The vast majority of all patent issues are resolved without anyone having to go to court; and in many cases, it doesn't even take a contract because the fact that someone has a patent and the resources to enforce them and indicates that he will do so may often be enough of an intimidation.

Google definitely stifles innovation with its search engine patents. No one has dared to infringe on the PageRank kind of patents because everyone who asked Google for a license was told "No way, José". So the reason they haven't had to sue is because people are so afraid. But the negative effects of those patents on innovation and competition is the same as if they sued successfully.

Microsoft has sued over patent infringement only four times while having been sued countless times. Even in those four cases, the outcome was a license agreement, always pretty quickly after the lawsuit was filed. So those companies tested Microsoft's determination to actually go to court. If they had done the license deal right away, Microsoft would never have gone to court. But it would have used its patents nonetheless. If more licensees had decided on brinkmanship, there would have been even more lawsuits, and still just the same intentions on the patent holder's part.

IBM vs. TurboHercules is another example. It was a threat letter. Any argument that they only answered a question is easily refuted because they alleged an infringement out of the blue, then clarified later, so there was threat v1.0 (unspecified IP infringement assertion) and threat v2.0 (along with a list of patents). They key thing here is not whether they ever have to go to court. It's that the TurboHercules company, the Hercules open source project and all users must be afraid of IBM doing so, which has all the anticompetitive effects IBM wants without a formal lawsuit. Of course, if someone wanted to test IBM's determination, that's where it could go. But for now it's an antitrust case before the European Commission.

Even concerning Oracle vs. Google, it remains to be seen what Oracle wanted and wants, and whether Google had a chance to accept a reasonable deal and just decided to fight it out.

Finally, the only comment about concrete OIN activity I've seen was about the purchase of the (supposed) OpenGL patents which Microsoft was selling. Of course, any OIN's protection on them still suffers from all OIN's flaws. Having said that, do you think that's at least something good? It would be good for you, I guess, to elaborate also on the good points of that, no matter how weak, to strengthen your position.

Large companies like Microsoft divest patents all the time; so do many others; but there are many buyers (trolls, defensive pools, strategic buyers); so there's a huge secondary market for patents out there.

The story that OIN tells (and GroklXX parroted more than once) without any credible evidence is that Microsoft specifically wanted trolls to assert those patents against Linux users and distributors without having to do so directly, and that Microsoft sold them to another entity, which then did a deal with OIN. No one has any evidence, but it is kind of hard to imagine that Microsoft, if it wanted to sell trolls via an in-between entity to trolls, wouldn't be able to do that. One can have different views as to their intentions, but the notion of them being as stupid as OIN claims is hard to imagine. I don't say it's impossible because I don't know what exactly happened; it's just not likely.

In my first blog posting ever on OIN I actually answered, without limiting it to Microsoft (because OIN has bought hundreds of patents for huge amounts of money), the question you asked about whether it's a good thing. Let me quote the relevant passage from that posting:

(quote from blog) The OIN continues to buy patents at auctions that might otherwise be acquired by regular trolls. At first sight, that may sound good. But given the intransparent and arbitrary structure of the OIN, it's not clear whether that's actually the lesser or the greater evil than a conventional troll. In the end, the OIN is under the control of those six companies who could decide to use some of those patents against competitors, including FOSS competitors. By controlling the definition of what the OIN calls the "Linux System", they can always ensure that their competitors don't benefit from it, even if they were or became OIN licensees.

Buying those patents at auctions is really expensive. So far the OIN has spent hundreds of millions of dollars. Given the way businesses operate, that's not the amount of money that one would spend unselfishly. Instead, that level of investment, intransparency and unbalanced rights suggests ulterior motives, if not a long-term hidden agenda. (end quote from blog)

So the honest answer is: I don't know whether it's good or bad because there's considerable doubt about the OIN. An organization that does such an unfair license agreement can't be trusted. If we all knew for sure that those OpenGL patents would otherwise have ended up in the hands of someone who would have caused major damage to the commercial adoption of Linux, then one could say that OIN would have been the lesser evil. But there are so many unknowns there about the OIN and about what would otherwise have happened with those patents...