Lawsuit Raises Questions about Open Invention Network, Linux Foundation

Oracle/Google lawsuit has some questioning the effectiveness of OIN and the LF. Is it fair?

Software patents are bad.

This needs to be clarified right up front, because as soon as I write about patents, some knucklehead is going to come along and argue that what I have written is really just part of a pro-patent agenda. Or that I'm an idiot.

But there's a meme running around the community this week regarding the Google/Oracle Java lawsuit that I feel needs a little clarification, and it involves patents. More specifically, it involves the Open Invention Network and my former employers, The Linux Foundation.

There's been some talk this week that the lawsuit between Oracle and Google proves the ineffectiveness of the OIN (of which both companies are licensees) and the Linux Foundation (in which both companies are members). If either organization had been effective, the argument goes, then this lawsuit would not have happened.

Leaving aside for a moment that both Google and Oracle have a history of doing exactly what it pleases them to do, when it pleases them, let me take a shot at addressing this.

Regarding the Linux Foundation, it is not in their mandate to prevent members from suing each other. While this is a nice thought, I can't for the life of me figure out how you would create a US-based organization that choked civil liberties so much to prevent any members from suing each other for anything. You could, more reasonably, argue that the LF should try to act as a mediator between two or more parties with a grievance. That would be nice, but such mediation usually requires lawyers, and lawyers need to be paid. So there's at least a financial hurdle there, as well as a change in mission statement.

As for the OIN, it's a patent holding company that buys up patents and, once purchased, grants licensees royalty-free rights to use the patented technology. The short reply to critics of the OIN's lack of action here is easy: the patents that Oracle is suing Google for allegedly violating are not even held by the OIN. There's not much of anything that they could do in this specific case.

On a broader scale, the arguments are more interesting. Simon Phipps, Chief Strategy Officer of ForgeRock, tweeted that "The ORCL-GOOG case makes OIN and the Linux Foundation look like the League of Nations at the start of WW2."

Ouch, that's gonna leave a mark.

It should be noted that ForgeRock just joined the OIN last week as a licensee, so Phipps and his colleagues at least see some value in OIN.

One person who doesn't see any value in OIN at all is activist Florian Mueller, especially in a recent blog:

"I have repeatedly criticized the 'Open' Invention Network... an entity that claims to protect 'Linux' against patent threats. I've always said that there's no evidence it has ever helped any company (the latest example is Salesforce, which apparently pays royalties to Microsoft for a variety of patents including some that read on Linux). And I've explained in detail that the OIN doesn't truly protect all of FOSS but only an arbitrarily defined list of program files," Mueller writes.

That Phipps and Mueller are both critiquing the OIN at the same time is enough to give me pause... until I discern the motivations for their arguments.

Mueller argues that the OIN is bad in and of itself. Rather than viewing OIN as making-the-best-of-a-bad-situation solution, Mueller takes the no-holds-barred approach that the OIN is a "patent trap." I used to think Mueller had issues with any kind of defensive patent method, but he has publicly favored the proposed Defensive Patent License, so perhaps it's just patent holding companies like OIN he has trouble with.

Phipps, I believe, is not arguing against the OIN and the LF so much as arguing for something else: an additional solution/entity that could put the kibosh on lawsuits like these.

And, if he's not, I'm certainly leaning in that direction.

What trips me up, however, it just what such an organization would look like. A full-on consortium seems like a possibility, but then I remember how fast UnitedLinux imploded when one of its members got squirrelly.

The truth is, it's not clear what kind of umbrella group could keep members at legal bay and/or neutralize patents. The rights of all parties would have to be respected, and every once in a while, corporations screw up and need to be held accountable. Any solution that didn't allow for this would be a pretty bad thing. Short of one mega-company acquiring all the Linux software companies like the Borg--and I think we can agree that would be a much worse idea--how do you keep member companies in line?

So here's the question of the week: how would you change the LF and the OIN to handle matters such as these? Or can it be done?

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