Information freedom for open source users.

Regardless of the merits of a case against open codecs Ogg Theora and VP8 for patent infringement a very important question remains unanswered.

Who will pay the lawyer bills?

NoSoftwarePatents founder Florian “Floyd” Mueller (left), who was last seen here being panned for fighting the Oracle acquisition of mySQL, fears it may be Apple.

“While Microsoft doesn’t try to force any Android phone vendor out of the market, Apple uses some of its own patents very aggressively in order to prevent such companies as HTC from providing certain functionality at all,” Mueller wrote me late last week.

“It’s important to see the difference from the perspective of competitors and consumers: the worst thing that can happen with patents is if vendors, especially leading ones, use their patents for exclusionary purposes.

“Should Apple be a contributor to the patent pool Steve Jobs mentioned, that would be very bad news because then the objective may very well be to prevent any commercial use and distribution of Ogg Theora and other open-source video codecs.”

Mueller has long been concerned with the patent status of open source codecs, writing at FOSS Patents after Google announced VP8 would be open source that multimedia is a patent minefield.

It doesn’t matter whether it’s Google or any other vendor or a FOSS project: there’s no such thing as a multimedia data format that anyone can absolutely guarantee to be unencumbered by patents.

This is one reason Mueller, who started in this business as a 16-year old computer journalist in 1986, launched his campaign against software patents.

All this makes the pending decision in Bilski vs. Kappos, still unknown at this writing, so important. A decision that encourages Apple to proceed, especially against Google, may make for the biggest lawsuit of all time.

The FUD attack launched against Ogg Theora and VP8, the very idea that they violate patents, is not aimed at the courts, but at the W3C, which held a conference on the coming HTML5 standards last week in Raleigh.

While audio and video files are currently handled through object tags, HTML5 will support standard audio and video tags, support for which will be defined in the browser.

Microsoft and Apple are carrying the water of the content industries, which fear that losing control of the technology under which content is displayed results in losing control of the content itself. That control is expressed through the MPEG LA licensing body.

The $5 million license fee for the H.264 codec required by MPEG LA acts as a barrier to entry, both a financial and moral one. A licensee that doesn’t follow Hollywood’s rules could have its license pulled, and thus its product.

The money is chump change for Microsoft, and the barrier a good thing.  It’s a matter of principle for open source.

HTML5 is where that principle is being contested. The W3C policy is not to accept a royalty-bearing, proprietary technology into the Web standard. That’s why video has, until now, been a function separate from the browser.

The attack came now because Mozilla, makers of Firefox, only wants to support truly open codecs under HTML5. Google’s move to open source of VP8 is also said to be preparatory to making it the default codec in Chrome.

If open source becomes the default for HTML5 in Chrome and Firefox (and Opera too) Hollywood loses its technical control. Thus the dark claim by Jobs that a ” patent pool is being assembled to go after Theora and other ‘open source’ codecs now.”

The case is a nonsense.

If Ogg Theora were subject to patent, why would those patent holders allow nearly 160 million downloads (at last count) of the VLC Player, which contains it. Then there’s the question of whether any software patent is valid — we’re still waiting on a Supreme Court decision in Bilski vs. Kappos to settle that question.

Apple and Microsoft have made their money on video by doing what the video owners want. They want to control the Web’s video technology. So Microsoft will only support H.264, Apple darkly mutters about patent suits, and the W3C is supposed to knuckle under, making a proprietary technology part of the Web standard.

If pressed, I have no doubt that a suit would be filed. But even the filing of a suit does not always represent a desire to go to court, only a willingness to do so as part of a larger negotiation.

The suit would magically disappear if H.264 became the Web standard for video, and everyone who wanted to watch a video online were forced to have their software license that codec from MPEG LA.

That’s the issue squarely facing the W3C now.

There are three ways to speculate about Microsoft’s latest Linux patent cross-license, this time with HTC:

1. Microsoft is pushing its weight around (again).
2. Microsoft is aligning with Google against Apple.
3. Microsoft is making peace with everyone.

(Ah, yes, the classic Boardwatch “Billgatus of Borg” cover, from my days writing for Boardwatch Magazine in 1998.)

The first is the idea that Microsoft is trying to surround Linux with patent claims, place a stranglehold on Linux, and control open source. The second is that this is all part of the “great game” among the big tech powers, wheels within wheels mere mortals could never understand. The third is that Microsoft wants to end the era of patent suits — as was done with Amazon so with Android.

But I want to look at a different question today. Why are so many smart companies signing up with these agreements? What is in them?

Microsoft has always kept a proprietary no comment on these deals, and non-disclosure is a condition on the other side as well. Outsiders have been led to understand Microsoft has some patent claims involving Linux (undisclosed)  that companies are recognizing, and that they are paying for the privilege.

But what patents? How much? What’s in the fine print? This we are never told. The game has been going on for over three years now — since the first deal with Novell — and the public is still being kept in the dark.

No doubt Microsoft believes this is in its best interest. It helps if people believe these are onorous terms, that Microsoft has everyone over a barrel, and Linux by the throat.

But I wonder. If Microsoft’s intent really is to make patent peace with Linux, not patent war, then at some point the cost of the fear (from open source advocates) outweighs its value.

Despite all these deals, despite Codeplex, despite releasing coders to work on projects like Joomla, Microsoft is still looked upon with loathing by open source advocates. (Just look at our talkbacks.) But that attitude would change, and open source would be far more willing to make peace with Microsoft, if we knew what was in those agreements, and knew they were no big deal.

You don’t think a Microsoft lawyer might want to lose one of these things inside my favorite bar, do you? I’d pay for the martinis.

Like Google before it, Facebook is now coming under increased scrutiny over the meaning of the term “open” in an online world.

Open software is good. Open data? Maybe not so much.

The traditional software argument is that unless you’re using the AGPL. unless everything is open including your secret source, that you’re not really open, that you’re just pretending to be. Open is just another word for nothing left to lose.

I have never bought that. Open source is not the same thing as free software, which was one of the first lessons I was taught when I took this beat. (Richard Stallman got on me personally about it.)

Open source is a continuum of choices, ranging from Stallman’s Free and Open Source software (FOSS) ideal through Microsoft code that is under tight restrictions. Open source was born in reaction to FOSS, and in opposition to it.

Early on I devised an open source incline to illustrate the range of choices available. As the need for community contribution increases you go down the incline. As your proprietary control over the code increases you go up the incline.

Later I amended this into the open source development incline, taking a variety of development models into account.

The point about most code intended for online use is that it is not usually at the bottom of the incline. Even Google is not at the bottom of the incline, although it’s an open source citizen in good standing. Google does not support the AGPL.

But what about data? Who decides the status of online data? Does that decision lie with you or with the company hosting the data?

Facebook has defined data as software and released its work into the wild, saying it’s just following the tenets of open source.

When you look at open vs. closed in a software world, open sounds marvelous. Look at it in a data frame, as in your data is open unless you say not, and Senators spy a privacy violation. Especially if, until recently, you’ve been defining yourself as a private network safe for kids, not an open part of the regular Web.

It’s pretty easy for software to move up and down the open source incline. For data it’s proving problematic.

The seizure of Jason Chen’s stuff for getting his hands on a pre-beta iPhone took me back 25 years, then dropped me back into the present.

Back in the spring of 1985 I was preparing to join Newsbytes, an online news service then hosted at The Source, but there was a problem with our other hire, Englishman Steve Gold.

He had just been arrested.

Steve was, like me (and like Jason) a freelance writer. He was doing some security work for the old Prestel network, and hacked into it. For this he would stand trial, be convicted, and live in legal limbo for years until the Law Lords finally overturned it.

The question on that spring day of 1985 was whether Steve was a risky hire. Emphatically no, I said. Why, he’s a made man. If you’re not willing to skate on thin ice to do your job, that would be a problem.

Flash forward 25 years. It seems little has changed. Judging from his blog, Jason has the kinds of obsessions, like video games, associated with my son’s generation. He’s like Steve.

But this is not a story that resonates at all with open source. A proprietary vendor feels that its secrets have been compromised. It wants people to ooh and aah when they see the new iPhone has two cameras, that you can hold it up and engage in videoconferencing.

Frankly, my dear, I don’t give a (well I live in Atlanta, what else was I supposed to say?).

It is true that if someone got their hands on the next HTC or Motorola Android phone, there might be a stink. But it would not be that great. The Android code, the capabilities it supports, are transparent and available. Vendors can choose among the options.

Is there any such thing as pre-release code in the open source world? All repositories have some, but the word for such code is buggy. It’s worthless. Pre-release code gains value only after it’s tested and accepted formally into the code base — in other words when it’s released. We need find no code before its time.

Here at ZDNet Open source, I have long known that our most popular stories are straightforward announcements of code releases and new features. My co-blogger Paula Rooney is great at getting those stories in to us and you show her your love for it. Numbers don’t lie.

The kind of stuff I specialize in — asking questions of vendors, readers, and government — stirring up controversy, it’s not so popular with y’all. But going undercover to get behind a curtain, grabbing untested products before they’re ready, that’s not really a story in an open source world.

Back in Steve Gold’s home of old blighty, this whole case is being laughed at. The American press is said to be in the tank for vendors, and its reaction to the Chen case is being cited as an example of why British reporters are just better.

I know that’s still true in one case. But how do y’all feel about it?

Open source activist Florian “Floyd” Mueller has riffed on a recent piece of mine concerning Google’s open sourcing of its VP8 codec.

(The art is by Roland Heath and is called “My consciousness bouncing around the light.” Thumbnail reproduced with permission of the artist.)

His point — there is no such thing as a multimedia format unemcumbered by patents.

Multimedia (audio/video) data formats and codecs are one of the worst patent minefields of all. One has to tread carefully, and some of those mines go off all the time.

Google may face legal challenges to open sourcing VP8, he writes. Apple says there is patent uncertainty regarding Ogg Theora.

Floyd cites MP3, which German police have been actively policing at trade shows like CeBIT. They’re not really acting as patent police. They’re looking for pirated content, and the means to reproduce it. But patent claims give them the power to go after everyone, even if they’re using FOSS software to encode their stuff.

I think there’s a difference between how seriously police take patent claims at a trade show and how they take calls from Hollywood to seize stuff. Patents in this case are just an excuse to enforce copyright.

But I take Floyd’s point. Digital content is a patent minefield, and each country has its own set of mines.

This still does not render the success of VLC or Google’s move with VP8 meaningless. Despite all the policing in the world the trend is toward more open audio and video formats, to less DRM, and to complex files being given the same rights in the online world as simple files like this one.

Agree or disagree?

The battle between Google and government widened considerably this week, with Google seeking to identify evil policies for its users and governments calling Google’s own policies evil.

(Google-is-evil logo from Scroogled and TechRepublic’s GeekEnd.)

The battle is important for the future of open source, because as governments gain effective power over Internet resources they make it harder for open source collaboration to happen in all spheres.

Sometimes, as in collaboration between criminal gangs or terrorists, that’s government’s idea. Sometimes, as in the case of an autocratic government seeking to keep knowledge of what it’s doing from reaching the world, that idea is also evil.

The governments of 10 western countries called Google evil yesterday because its street view and buzz services lack what they call privacy protections. People are clearly visible on those streets, the governments charge. Google is violating privacy, but also “data protection laws and cultural norms.”

Cultural norms? That’s one of those phrases that can make a reporter go hmmm. If every government expects to police a global network so as not to offend “cultural norms,” defining those norms arbitrarily, do we still have a global network?

Iran’s cultural norms may tell bloggers they have no right to write. Burma’s may tell users they have no rights at all. Or so the governments of those countries might say.

Are the governments supporting the good of their citizens, or just their own prerogatives? Once the questioning starts, it doesn’t end, and Google can keep the questions coming with data.

For example. You want evil disinfected, you say? Sunshine is a great disinfectant.

Google’s government requests tool is primitive, it doesn’t show numbers from China, but it’s a demonstration of what Google can do, when it wants to, to blow the lid off government hypocrisy.

Who is evil enough to demand user data from Google? We are. The United States of America. Also the U.K.. And India. Who’s most active in demanding access be removed from Google servers? Germany, India, and the U.S. again.

But also, curiously, Brazil. Brazil leads both categories. Brazil likes to say it’s the best friend open source has. Is it really, or is that love a one-way street, where open source gives and Brazil just takes, then beats open source values whenever it gets into its cups?

It’s not just Google vs. China any more. This battle between Google and governments is going to continue, on a global scale.

World War III is virtual.

When Eric Raymond tells me he smells smoke, I go for my fire gear. When Pamela Jones of Groklaw says “j’accuse,” I tend to believe her.

When the two are standing on opposite sides of an important issue, getting all red in the face at one another, I come running.

So it is with the dispute over TurboHercules, which seeks to monetize an IBM mainframe emulator, and IBM, which has claimed foul.

Jones got into this with a long Groklaw post that has 11 updates (so far) acting as exhibits. It’s the fiercest debate there since the end of the Novell case, which is to say in about two weeks.

A summary is that TurboHercules started this mess, that IBM has not even filed a case, and that it looks like a shakedown by Hercules’ Roger Bowler and Jay Maynard. (Raymond credits Maynard with bringing him into the case.)

TurboHercules’ friends fired back. IBM loved Hercules until its founders made a business of it, TurboHercules has not filed a case against IBM, and Raymond, who is currently hosting the Hercules manuals due to bandwidth demands on them, does not live on Shakedown Street.

(I know this dates me, but I wore the grooves off this Grateful Dead album back in the late 1970s. It was produced by Lowell George of Little Feat, whose musical voice I still miss terribly. Picture from Amazon.com, which makes a market in used copies of it.)

This was followed by the usual back-and-forth. Jones was called an IBM shill. Hercules was called a Microsoft front and compared with Psystar, which tried to make Mac clones before it was stopped.

Jay Maynard himself entered the fray. He said he and Bowler had done this as a labor of love, but they needed cash now. He said he was fighting an absolute monopoly, and the plain language of IBM’s pledge to open source was legally enforceable.

Here is what I think:

1. Emulators are a good thing. They can act as development platforms that don’t put expensive resources at risk. They can be used to test error conditions. In time mainframes, too, will go into the clouds, and IBM will want emulation to lead them there.
2. An emulator is not a mainframe replacement. A mainframe is hardware geared toward high-volume, accurate transaction processing — air reservation systems, credit card processing, big government management work. Hercules is not a threat to IBM’s monopoly.
3. Conspiracies usually don’t exist. What seems like a conspiracy is usually a collection of accidents, people walking blindly in a virtual room and bumping into things. All parties to this dispute appear honorable.

Yes, Florian Mueller is a troublemaker. So is Pamela Jones. So is Eric Raymond. So am I, and so are you when you get riled, as talkbacks here will attest. Being a troublemaker is not a bad thing.

On the other hand, I don’t think IBM has broken its pledge, but as I said yesterday I do think it has been amended, and that it’s not a suicide pact.

It’s evident that Hercules took a lot of time to write. It’s valuable stuff. Its value to IBM is proven from its 10 year history as an open source project.

IBM needs to contrast the cost of “making an example” of Bowler and Maynard with the value in making nice. Hire the two men, take the copyright for a fee smaller than a lawyers’ dinner in a Paris restaurant, and create the value in Hercules you want your customers to have, at a price you control.

That’s what I’d do, anyway.

NOTE: For those who might think the album cover accuses anyone of anything, the main lyric. “Love is shaking on Shakedown Street. Used to be the heart of town. Don’t tell me this town ain’t got no heart. Just got to look around.”

This just in. Florian Mueller is still mad at IBM.

“IBM still hostile, dangerous and utterly hypocritical,” he writes, in asserting its patent rights against TurboHercules when it did not assert them against Hercules, the open source project on which it is based.

The real news is that Eric Raymond agrees with Mueller. The author of The Cathedral and the Bazaar, which did so much to define open source as distinct from Richard Stallman’s free software ideal, says IBM is digging itself into an ever-deeper rhetorical hole.

“IBM now appears to be claiming the right to nullify the 2005 pledge at its sole discretion, rendering it a meaningless confidence trick,” Raymond writes. “’Im watching this and I’m wondering when the adult supervision at IBM is going to step in.”

Actually, we’re all adults. IBM wrote its original pledge based on the idea that open source communities, and the companies arising from them, would not be going into its vault and making off with its crown jewels.

Fact is, IBM cannot allow its mainframe monopoly to be broken by a rival company. Billions of dollars in software and hardware sales are at stake here.

It would be like Microsoft allowing the re-engineering of and introduction of a compatible Microsoft Windows operating system. Or Apple letting the Mac OS go entirely open source. Or Oracle letting go of its intellectual property rights.

So IBM has amended its pledge.

You may say, they have no right. You may say, IBM said at the time the pledge was legally binding.

Many will. Raymond again. IBM’s actions are a “graceless attempt to nullify the entire pledge, a move which couldn’t offend the open source community more if it were calculated to do so.”

Raymond and Mueller are morally and, perhaps legally, correct. But IBM made a unilateral pledge. It’s not a contract. And I’m certain that in the IBM boardroom they’re adding, it’s not a suicide pact, either.

I believe IBM would rather take a hit to its open source credibility than steer into a financial iceberg. I am wondering how, or whether, this might all end up in court, because it’s not in court yet. It’s before the European antitrust authorities.

My guess is that while those authorities may chastise IBM, and may even fine it, they won’t free TurboHercules from IBM’s legal grip. And if open source advocates then march over to Hercules, the open source project (as they are doing), IBM could close it down and take that hit, too.

Yes IBM is wrong. Yes IBM is acting badly. Yes, Mueller and Raymond are right.

But for IBM to do otherwise, it seems to me, would be to break a responsibility higher than that to open source, which is the one it owes its shareholders.

What concerns me most right now is the chilling effect all this will have on other companies which have intellectual property rights. Will we ever see such a broad-brush pledge as IBM gave in 2005 again? Or will companies see this precedent as a cautionary tale, never to let go of what they feel is theirs?

Robert Galoppini (right)  writes that the Italian Constitutional Court has ruled legal a preference for open source software by the government.

He takes the opportunity to look at the worldwide trend, and generally finds that it peaked a few years ago.

The controversy has died down a bit, but I suspect it’s part of a continuing trend. And in looking forward it’s not the law, and not the politics, that we should be looking at.

But that’s precisely how we usually look of it.

When government uses open source, it controls its own code. When government uses proprietary software, the vendor controls the code.

This is a huge difference and there are advantages in both approaches:

1. Government owning code means government power increasing. Those who don’t like to see government power increasing may oppose such moves.
2. Government owning code means the buck stops there. With vendor code you can blame the vendor when things go wrong. When the code is yours you can’t.

I have written before that there is a  make-or-buy aspect to all this. I believe the Bush Administration has a bias toward buying, and the Obama Administration is adjusting the balance toward making. But it won’t be an either-or decision. Open source will have to prove its case, in every case.

Thus this press release, covering a study of the VA’s use of its VistA system over 10 years, and claiming $3 billion in savings, is significant.  It shows how the case will be made, and how it must be made, for government open source to move forward.

A non-ideological, dollars and sense, money-saving argument which is proven by subsequent events is the way forward for government open source.

IBM’s apparent actions in the case of TurboHercules have caused enormous anger in the open source community.

Having been the target of angry people myself from time to time, I know such things can be hard to stop.

Fortunately, IBM seems to have a friend in Jim Zemlin (right), executive director of the Linux Foundation.

Zemlin yesterday gave IBM a chance to respond on his blog. Dan Frye, vice president of open systems development at IBM and a Linux Foundation board member, accepted it.

Frye wrote to Zemlin that the company’s 2005 pledge has not been violated. “IBM stands by this 2005 Non-Assertion Pledge today as strongly as it did then. IBM will not sue for the infringement of any of those 500 patents by any Open Source Software.”

Our friends at ZDNet UK did some follow-up and found a bit of qualification on the pledge from an IBM spokesman.

“In 2005, when IBM announced open access to 500 patents that we own, we said the pledge is applicable to qualified open-source individuals or companies,” said an IBM spokesperson. “We have serious questions about whether TurboHercules qualifies. TurboHercules is a member of organisations founded and funded by IBM competitors such as Microsoft to attack the mainframe. We have doubts about TurboHercules’ motivations.”

The old dangling qualifier trick, claims Alan Shimel of Network World., and Mueller, who started the controversy, agrees. Qualified is a word IBM can define for itself, he told our Tom Espiner.

As I wrote yesterday, the issue here does not appear to be the Hercules emulator itself, but TurboHercules, which is seeking to profit from it. But is the IBM pledge one between equals, taken within an industry, or is it a concession only to hobbyists?

IBM might indeed be right on the law here, but I still wonder how the community will react, and whether an over-reaction might hit IBM defenders like Zemlin. Once the mob starts marching it’s hard for even a sheriff to turn them away.

When I wrote about Florian Mueller’s defense of TurboHercules yesterday I got a reaction I describe as “crickets.” Which is to say, no reaction.

That’s a shame because while I kept my tone light there are serious issues involved.

Most reporters think the central issue is whether IBM broke its promise to the open source community by asserting patent rights it previously claimed it would not assert against open source. IBM says it did not break its promise. Mueller says it did.

What really seems at issue, according to a long post Hercules founder Roger Bowler posted, is that he sought to turn his project into a company. He writes many IBM employees have used his software and IBM even published a chapter on it in one of its Redbooks.

It was only when Hercules became TurboHercules that IBM objected, Bowler said. That could prove important to a court. Patent lawyers don’t care whether your rip-off is made for business or pleasure, and failure to assert rights can often put them at risk.

Of course, a patent case is not yet before any court. After IBM waved its patents at Bowler he filed a complaint with the EC’s anti-trust authorities, saying IBM was illegally tying its mainframe software to its hardware.

It’s important that TurboHercules fired the first real legal shot, and that it did so in Europe. Europe has lately been more aggressive against U.S. tech monopolies than American authorities, and software patents are illegal there.

They may soon be illegal here. Bilski vs. Kappos, challenging the whole idea of software patents, was heard by the Supreme Court in November. A decision could come any day defining not just the legality of such patents but their limits, what types of software can be patented and what types can’t be.

I also want to call attention to what’s being protected here. Mainframes have been around for decades. IBM fought the law for decades to protect its monopoly, and the fight only ended when it ceased being an issue in computing’s evolution.

Yet the market remained. It still remains. There are big profits in backwaters. We are not arguing about the state of the art.

Patents are monopolies on inventions which are limited in time, but what IBM seems to have done is to patent each addition it made to its mainframe technology, the way movie companies re-assert copyrights on old movies so the public domain can’t exist.

Thus we come to the most basic question in intellectual property. What are its time limits? The purpose of legally created monopolies is to encourage people to create more stuff. How does it benefit society if a monopoly becomes eternal, if it continues to exist for generations after the creator has died?

I’m not trying to answer many questions here. You need to answer them. In a democracy you have the power. Your silence gives elites the power to ignore you.

Fresh off his humiliating defeat at the hands of Oracle, Florian Mueller is now tilting at IBM, accusing it of open source treason for trying to enforce a monopoly it won before he was born.

Hail knight of the woeful countenance. (Whose Don Quixote was better, you think, Richard Kiley’s or Brian Stokes-Mitchell’s (right)?

Mueller’s blog post, at FOSS Patents, makes clear IBM should now be apostate in the eyes of open source “because the one thing everyone in open source always feared the most was that a large player like this could use patents against an open source project.”

He continued:

What makes this even more appalling in the eyes of open source people is that IBM, as my blog explains, even holds two patents against TurboHercules that IBM promised five years ago never to assert against open source.

Never is a long, long time.

As Exhibit A for the prosecution Mueller offers the letter IBM sent Turbo Hercules claiming its open source mainframe emulator infringes on IBM’s patent rights.

Of course, Mueller himself points out why IBM is contradicting itself. The company still earns $25 billion a year from mainframe software sales, he says. Most companies would kill their corporate mothers for that kind of dough.

In many ways that’s just what we’re talking about. IBM’s mainframe dominance was hard-won. Everyone knows the System 360 project nearly broke the company in the 1960s, but an operating system running on multiple machines is the seed from which all modern computing springs.

Microsoft is just as desperate to maintain its desktop monopoly, which it won almost 25 years later by outmaneuvering IBM in the Windows-OS/2 wars. Such events are at the heart of a corporate story. And they keep thousands of people employed.

The question is just how much IBM credibility might be lost as a result of TurboHercules. Mueller wants to make certain it’s a lot.

To each his Dulcinea.

It’s no April Fool’s joke. It’s an academic exercise.

What if you could graft the iPad’s head on a Linux body, or take the best of the Windows interface and snap it onto Linux?

According to two University of Washington researchers you can. They call it Prefab.

Prefab automates the reverse-engineering of a user interface. It watches what the pixels do and creates code that does the same thing.

James Fogarty (from his home page) and Morgan Dixon say Prefab can make all software open source, by opening up all user interfaces to open replication.

Sounds great. Sign me up.

But is it legal?

My guess is Apple would say no. The legal point behind its suit against HTC is that Apple does not just own the way it implemented the multitouch technology used on the iPhone and iPad, but that it owns the technology itself.

In other words, you can’t reverse engineer it, as Google apparently did in Android, which HTC implemented. (Dave Foley’s problem is he didn’t get to the patent office quickly enough before he started crushing heads.)

As Larry Dignan notes the claim has already impacted the competitive landscape. Google is losing favor and Microsoft is gaining it, because phone makers and network operators perceive that Microsoft’s huge patent portfolio, and the way its lawyers play the patent game, will give them protection.

All that goes into a cocked hat if Apple wins a judgment against HTC and that judgment holds up on appeal, a process that could take years. Only after that claim is settled can we know whether something like Prefab is innovation or piracy.

And that’s no joke.

Before being acquired by Oracle, Sun Microsystems had built substantial open source momentum.

That momentum was one of the big reasons Oracle bid for the company, whose revenues always were (and are) dominated by hardware.

But Oracle is not interested in credibility. It wants cash. So to all those who bought into Sun’s story about making Solaris open as OpenSolaris, ha-ha!

The registration process to receive an Entitlement Document is part of the Solaris download process, with the Entitlement Document being returned to you via e-mail. For this reason, YOU MUST PROVIDE A WORKING E-MAIL ADDRESS AS PART OF YOUR SUN DOWNLOAD CENTER ACCOUNT. If you fail to do so, you will not receive an Entitlement Document and will only have the right to evaluate Solaris for 90 days.

The Entitlement Document is an adjunct to the Software License Agreement (SLA) that always accompanies the Solaris Operating System software. The SLA sets forth the terms under which Sun Microsystems, Inc. allows an end user to use the Solaris software for evaluation purposes for 90 days and is a binding legal agreement between Sun and the end user.

Translation. Open Solaris isn’t open at all. It’s now 90-day trialware. Then you buy it or lose it. Given the way the software is usually used — in scaled enterprise systems — this puts users east of the rock and west of the hard place.

Savio Rodrigues of Infoworld first discussed this Friday, including a link to Sun’s old terms for the software.

Former co-blogger Joe Brockmeier writes,  “it has to be extremely difficult to be on the community side of OpenSolaris these days.” Zonker has a way with understatement.

I tend to be more blunt. This is called taking it back. There is no longer such a thing as Open Solaris, and I think anyone who bought Sun’s promises on building an open alternative to Linux just got punked.

Oracle is now going to try and make people pay for software that includes contributions from a community which believed in good faith it was building an open source product. Oracle has long sold something called Unbreakable Linux. Anyone ever heard of unbreakable contract?

Do OpenSolaris users have a case? Or would the community be better off taking the most recent purely open source version and just forking it? Can they, when Oracle controls the copyrights?

Stay tuned.

A jury in Utah has ruled that Novell owns the copyrights to Unix, not SCO.

The response from Groklaw, which made its bones covering the SCO cases, was immediate. “Thank you, Novell, for never giving up, and never giving in. Those of us who love to use Linux will forever be thankful to you.”

I spent the afternoon trying to pull more out of Novell as well, and finally got this from a spokesman.

“The jury has confirmed Novell’s ownership of the Unix copyrights, which SCO had asserted to own in its attack on Linux. An adverse decision would have had profound implications for the Linux community.

“We own the copyrights and we will continue to protect the open source community, including Linux.”

SCO trustee Edward Cahn immediately sent out a release saying the company would “fight on” against IBM, “based on contracts,” but it’s hard to see how far the company can go without resources.

I know some snarky comments will immediately come by saying, “what? Novell protects the open source community? What about its agreement with Microsoft yadda-yadda-yadda?”

I think the more important point in all this is that Linux is out of court, and that whatever the merits of Microsoft’s patent claims on Linux technology it’s not dragging Linux back into court.

Any cloud overhanging use of Linux should now be clearly gone. Novell owns the copyrights. Its agreement with Microsoft is binding regarding patent claims should anyone choose to sign it. Those who don’t are not cowering in fear, either.

The long legal nightmare of open source may be well and truly over.

Feel free to disagree.

With the battle between China and Google escalating, a lot more attention is being paid to how we need to play China.

I have given that some thought. Probably because I have friends there.

Having friends there changes your perspective. It removes abstraction, makes things concrete.

There is really only one thing I know for certain about China and its government. That is, it’s complicated.

There are lots of moving parts. There are tensions between the highly-industrial coast and the less-developed interior. There are tensions between the forces of order and capitalism.

There is also one inescapable economic fact underlying all of this. China is on a collision course with a hard reality we have only begun to face ourselves. That is, a need for balance.

In our case, it’s a balance between debt and the ability to pay. In their case, it’s a more basic balance between consumption and production.

While we’ve been building a debt mountain China has been building an unsustainable surplus. It must slow its total growth, and turn inward, in order to maintain stability.

We accomplished this through the 20th century. In the 1890s we were much like China is now, a fast-growing industrial powerhouse that was resisting calls from our people to share the wealth.

It took two wars and a Depression before we got the message. Today’s complex, high-tech, middle-class society is a monument to our success, a model that has spread throughout the industrial world.

China, in other words, is still stuck on 1898. Its challenge is to get from its industrial present to a post-industrial future without collapsing.

In this struggle the Web is our great weapon. Because the Web is not just computers and text and applications. It’s not Google.

It’s the minds behind every screen, and the power of those minds to self-organize freely, to produce change organically, from the bottom up. Our system is able to do this from everywhere, so that our culture rises out of the streets, absorbs the tastes of every immigrant, and adapts to rapid change.

(To the right, Sir Tim Berners-Lee, whose graduate paper became the architecture of today’s Web.)

China’s does not adapt well. Many of its researchers and businesspeople feel as free as their American counterparts, but they’re not. And they’re reminded of this every day, with every 404 error, of how opaque their society is.

Chinese people accept this opacity as the price of stability. But the price is high, and it’s borne by everyone, whether they are even aware of it or not.

Rather than confronting China about this, or lecturing them, I think it’s most important right now that we set a good example for them. That’s not easy. We have our own problems. Our society is both complex and polarized.

But the best way we can help China through its troubles is to be more transparent about our own, to work harder at getting along among ourselves, and to demonstrate that change, while slow and difficult, is worth the pain.

Open source is a great example of this. Chinese businesses see software as an input. Open source makes clear it’s more than an input. It’s a process. Sharing the development load makes solutions easier to implement. Companies and individuals must cooperate in open source to make progress.

Open source is, of course, a product of the Internet, but also of the academic models and scientific methods which built the Web. Open access to all the Internet, the open availability of all knowledge, is something scientists and academics take for granted. Collaboration is in their DNA.

This is what we can offer China. It’s a gift, albeit a loaded one, because there is a certain amount of chaos within it, chaos Chinese fear the way Germans do inflation, the way Japanese do radiation, the way we do communism or fascism or Islamofascism. Inside that mirror of the screen there are no secrets, and that’s scary, still.

But that’s the light China is moving slowly toward, and if they have a friend on that journey, a competitive and true friend who will speak truth to power, they have a better chance of getting through it.

Before there was a Microsoft, when Bill Gates was still in swaddling clothes, IBM was in the antitrust crosshairs.

Its 1956 consent decree aimed to keep IBM from controlling its whole ecosystem. It created markets for used machines and services IBM had been keeping down. The decree remained in force until 1996.

The aim of that decree, and of the Microsoft consent decree, signed in 1994, is to keep effective monopolies from being extended by tying them to other goods and services through contracts. Such deals are at the heart of U.S. antitrust law regarding technology, where change is constant and borders are constantly shifting.

IBM still dominates in the “big iron” sphere formerly called mainframes, and now it’s on the defense in Europe, where a French company now charges IBM is preventing people from running its open source mainframe emulator.

TurboHercules thinks of itself as being in the mainframe disaster recovery business, not the mainframe business. Its Hercules is a software layer that sits between the mainframe software and a commercial system like Linux or Windows, and has been around for 10 years.

By tying use of its mainframe software to IBM hardware, TurboHercules charges, IBM is preventing open source from competing. The company’s complaint said it tried to do business with IBM last year, but was met by an intellectual property complaint.

The U.S. Justice Department has been investigating IBM’s mainframe business since last year, but given the EU’s recent $1.45 billion fine against Intel, its antitrust regulators are now feared more than their U.S. counterparts.

This case may go deeper, however. IBM has become recognized as an open source leader. You can argue that open source saved IBM, allowing it to unify product lines under Linux, offload development costs, and create new alliances.

I think of IBM’s mainframe business the way I would think of a newspaper chain tied to a larger media conglomerate. The newspaper business is dying and thus milked ruthlessly for profits, which are invested in areas with faster growth.

IBM has a lot to lose if it can’t maintain that cash cow. But it also has a lot of credibility in open source, credibility that could dribble away if this case goes on or expands.

So is IBM a friend or foe of open source? Note: There is a poll embedded within this post, please visit the site to participate in this post’s poll.

The continuing conflict between Google and China, which may be a proxy for deeper conflicts over economics and values, could easily impact open source.

That’s because Google has become the U.S. company most identified with open source development. Google’s Android phones are mainly made in China — like nearly all phones.

Google insists its pull-out won’t impact Android, but can we really be certain? Can Google really be certain?

Hassling HTC, quietly putting out the word to others not to support Android, could delay Google considerably. If China wanted it could tell its courts to encourage Apple to file suit there, saying it was only seeking to protect patent rights. It could tell Taiwan that Android is provocative.

The plain fact is that the open source ethos of trusting people and accepting diverse opinions in the code stream is directly at odds with China’s Internet policy, which insists on shifting boundaries moved at the whim of Beijing’s mandarins, and absolute adherence to those boundaries.

Anyone who thinks modern China is communist knows neither China nor communism. It’s an evolving amalgam of the mandarin, bureaucratic system that ruled under the emperors, and a centrally-controlled capitalism George Orwell wrote about in his journalism.

In America business is strong and government weak. In China it’s just the opposite. And the government process is an opaque tea party. (China was drinking tea when Sarah Palin’s ancestors (and Keith Olbermann’s) were living in caves.) Business has access to that tea party, but its interests are not controlling. Businesses are not people under Chinese law.

Right now China is going through an enormous internal struggle, similar to what this country was going through in 2007 and 2008. It’s looking for an economic soft landing while the economic ground comes up to meet it.

We own its bank. Its system of maintaining a strong yuan through purchases of U.S. government assets is a game that must end, somehow, which means growth must slow, which means dreams must be put off, which risks social unrest.

China fears disorder the way Germany does inflation.

Open source is a disordered state of software development, especially when contrasted with proprietary models. Individuals are free to see code, change code, and release code on their schedule, to their own specifications. To a Chinese bureaucrat’s eyes it must seem akin to anarchy. Someone might stick a Falun Gong fortune cookie in there.

We call it freedom. China calls it madness.

China has grudgingly accepted Americans’ rights to do and think as Americans will, but it has not yet accepted the idea of its own people thinking and doing as they will. Boundaries must be maintained.

Proprietary software maintains boundaries. Proprietary development can be controlled.

I can easily see China turning toward the proprietary model. Open source may be an innocent bystander in this great game, but innocent bystanders can be victims, too.

Hey, maybe the merger market isn’t dead after all.

I mention this because Open Logic has just announced an open source audit service for mergers and acquisitions.

The service will not only detail what open source your company depends upon, but what licenses you’re using. This can help an acquirer set an appropriate price.

In making its announcement, Open Logic quoted a recent study saying $36 billion in technology acquisitions went down last year, and 85% of those deals were done in the second half of the year. With the markets now opening wider, more deals are expected.

The technical means for the new product is Open Logic’s Deep Discovery product, previously pitched mainly for audit and census work.

Open Logic may be best known to those in the open source community for its support of the Open Source Census, which collected data on 433,640 installations, finding Ubuntu to be the dominant Linux distribution and Firefox the dominant application.