OIN expands its coverage

OIN is meant to be a sort of patent club that reduces the risk of patent litigation for its members. OIN members sign on to the organization's patent license agreement, granting a license to their patents to all other members for use with Linux. There is a set of patents owned by OIN itself; companies gain access to those patents by signing the agreement. But the real value in OIN membership is meant to be protection from other OIN members; no member may assert patent claims against another member (with some exceptions - see below) without risking the loss of its own patent use rights under the agreement. The list of OIN licensees makes it clear that a lot of companies, including Cisco Systems, Collabora, Canonical, Google, HP, IBM, Mozilla, NEC, Novell, Oracle, Philips, Red Hat, Sony, and Twitter, see value in this arrangement.

That said, there are some obvious limitations to the benefits of OIN membership. It is sometimes said that members may use the full set of licensed patents in their defense, but there is nothing in the agreement that allows that use. No OIN member is required to use their patents (or to allow them to be used) in a counterattack against a patent aggressor. Indeed, if one OIN licensee (call it "EvilCorp") sues another ("NiceCorp"), a third licensee (that we'll call "ConcernedCorp") still cannot, by the agreement, withdraw the patent license it granted to EvilCorp - though, interestingly, the license for patents owned by OIN itself can be withdrawn in this situation.

In other words, OIN reduces the chances of being attacked by its other members, along with reducing the chances that such an attack would succeed. It offers no real counterattack capability at all. The agreement also only covers OIN licensees; it says nothing about their customers, who could still be the target of an attack.

The license agreement only applies to the "Linux System," a well-defined list of programs that must be used with the Linux kernel. That list contains almost 1900 programs making up the bulk of what one might expect to find on a typical Linux system, though certain types of applications - mplayer and VLC, for example - are notably missing. The agreement applies to specific versions of these programs; the 3.1.0 kernel is on the latest list, for example. "Successor releases" are also covered with an interesting exception:

So just about anything can be tossed in as long as it's a bug fix or a performance or usability enhancement; as soon as it crosses the line into adding "new functionality" the coverage ceases. One can easily imagine a future court case hinging on whether a change is a usability improvement (covered) or a new feature (not covered). To be covered, the code must be distributed by the project's maintainer. Private changes are not covered, but the unchanged code remains covered in private versions.

There are some exceptions, though, even with regard to the exact versions of packages on the list. Anything that implements something that looks like a digital video recorder, DVD player or recorder, or an electronic program guide is excluded. Anything involving codecs is also excluded except for those found on this list; GIF, PNG, and FLAC are all covered, as is "RAW" (whatever that means), but many others, including some intended to be unencumbered, are absent from the list. Codecs remain a patent minefield, and OIN has not attempted to solve that problem.

While Philips and Sony are OIN licensees, they have carved out some additional exceptions for themselves. These include anything having to do with Blu-ray, "receiver functionality," anything related to DRM, or "digital display technology." And those are the small ones. These companies also except anything having to do with wireless networking - including both WiFi and networking through a cellular network. "Camera functionality" - anything capable of capturing an image - is excluded. There is also an exception for "technology for human-computer interaction, including interaction and appearance of applications, and remote control technology". For good measure, Philips also excludes virtualization.

In other words, Philips and Sony want the protection of OIN for everything not directly related to their product areas, but they want the ability to sue for anything else. And OIN is willing to accept them on those terms, evidently thinking that half a license is better than none. It is worth noting that both of those companies are listed as "founding members," a title which, presumably, does not come for free. The fact that no other companies have joined with such conditions suggests that they are expensive indeed; that is probably a good thing.

With all these exceptions, one might well wonder how much benefit actually derives from OIN membership. The fact that both Oracle and Google are members has not prevented Oracle from filing patent suits against Google (albeit relating to code that is not on OIN's list). Outright patent trolls will, of course, not be interested in OIN membership and will not be bound by its license. Similarly, companies like Apple and Microsoft have, thus far, declined the opportunity to be a part of OIN. All told, there is no evidence that the OIN has ever prevented a patent shakedown.

That said, one must recognize that any such evidence would be most difficult to find. No company will announce that it would have asserted its patents against another had it not been for those meddling OIN kids. It will always be difficult to measure the success of an organization like OIN; one can only try to read between the lines when looking at what companies do and don't do. For example, Microsoft's settlement of the Tom Tom suit, evidently on relatively favorable terms, happened shortly after Tom Tom joined OIN. Whether there is causality there or merely correlation is only really known to Microsoft's lawyers, but some people have certainly seen a connection.

Legal organizations like OIN are about reducing risk; in that regard OIN, by gathering together a long list of companies that are willing to license their patents for use with Linux, has almost certainly succeeded. It is also important as a very public statement by those companies that the free software commons (or, at least, a significant subset thereof) should be a sort of patent commons as well. OIN is certainly not a solution to the software patent problem, but it is a useful mitigating factor in a world where software patents continue to exist. So the updating and expansion of its list of covered software can only be a good thing.