Timing is Everything
Two online essays touching on software patents recently crossed my browser
window. The first is Seth Nickell's "Why Mono is Currently An
Unacceptable Risk". Nickell is a Gnome developer (that's Gnome the open
source software project, not gnome who lives in the garden), and his essay
discusses his reasons for not wanting to base any work on the Mono open-source
.NET implementation. The second essay is Microsoft's "Patents
Pending", part of their continuing "Microsoft on the Issues" series. Coming
two days after Nickell's piece, this will no doubt strike some folks as the
official response from Redmond, though a moment's thought will convince most
reasonable observers that it must have been planned long before. In any case,
this particular bit of tub-thumping argues that software patents are A Good
Thing, and that it's good that the Bush administration is planning to spend some
money to try to support the overtaxed patent office.
Nickell's main concern is with the licensing terms under which the Mono
project is moving forward. Mono is an open-source implementation of the ECMA-334
and ECMA-335 standards that cover the C# language and the CLI. Microsoft or its
employees have made various statements about royalty-free, reasonable, and
non-discriminatory licensing terms for this technology, but there doesn't seem
to be any official and unabiguous statement of what this means floating around
on the Web. The worry is that Microsoft is just biding its time until Mono is at
the heart of various Linux projects, at which point its lawyers will pounce and
demand unreasonable concessions or tie up the open source movement in knots,
thus dispatching another competitive threat to join the likes of DR-DOS and OS/2
in the software graveyard.
That's enough to get open source conspiracy theorists theorizing (heck,
almost anything is enough for some folks), but I suspect Microsoft's latest
essay will set those tongues to really wagging. Part of the open source concern
here is that Microsoft will use its patents in some unspecified but intolerable
manner to crush Linux and other projects. So it can't be encouraging to read
"This cycle of investment and innovation is made possible by a legal system that
helps protect intellectual property" and other choice gems of intellectual
property-based capitalism triumphant in this essay.
Attentive readers will know that I have no great liking for the current
system of software patents (in fact, I've argued in this very column
that they should simply be abolished). But given that this is unlikely, I can go
along with most of Microsoft's points: that if we are to have a software patent
system, something must be done to clean up the backlog of half a million patent
applications, and that we need to get patent examiners who are better qualified
to deal with software patents. Unclogging the system will help get rid of bad
patents at the same time that it helps to grant good ones more quickly.
Meanwhile, I can utterly understand the people in the open source community
who are worried that ECMA-334 and ECMA-335 are a pair of Trojan Horses. Though
I've heard informally from various Microsofties that Mono is a project they
like, it would still be really nice to have the reasonable and
non-discriminatory terms spelled out. They've done this for the Office XML Reference Schemas,
which have the license available online. Why not do the same for the ECMA C# and
CLI specifications, Microsoft?
Mike Gunderloy has been developing software for a quarter-century now, and writing about it for nearly as long. He walked away from a .NET development career in 2006 and has been a happy Rails user ever since. Mike blogs at A Fresh Cup.