Why
do we need the Intercommons?
List discussions, Jan-May 2002
The
following is exerpted listserver dialogue about the Intercommons
concept. More dialogue from the intercommons-list will be published
here when it is deemed suitable for public review.
April
17, 2002
To:
intercommons-list
From: Bruce Damer representing ideas of the list participants
Subject: On the CC Conservancy and DS/Intercommons
Dear Intercommons/Creative Commons list group,
I
have had much time to discuss with the team and consider the
issues from our last meeting at Stanford. It strikes me that
there are problems with the current concept of the conservancy
part of the Creative Commons. It boils down to:
1.
Any technology that has real utility and is therefore worth
protecting by the conservancy is almost guaranteed to violate
patents or otherwise not have a "clean bill of health"
in IP terms.
2.
A centralized conservancy presents a single point of attack
and could be vulnerable to financially punitive patent actions
against it (as Larry pointed out in the meeting).
Indeed,
our initial patent searches done as a preliminary investigation
before we would engage Larry's recommended legal counsel turned
up a 1997 patent that we most certainly infringe within a major
part of one of the innovations considered for submission to
the conservancy. The question then was, do we contact that patent
holder to alert them and seek a license? How many other parties
would we have to do this for to be able to make an innovation
be "certified as safe" for deposit into the conservancy?
For
a historic perspective, if Tim Berners-Lee had done a patent
search in 1989 and discovered the preexisting BT patent (on
the hyperlink) and decided it was too risky to pursue HTTP and
HTML or was not motivated to obtain a BT license, the public
domain and indeed the world would be all the poorer today.
So
it seems to us that what is going on is an oil and water division
between those who support and attempt to enforce IP for software
and those who don't believe in it and choose to cast their lot
with open source approaches. Larry also has questioned the wisdom
of permitting software patents in the first place (in his latest
book and in recent interviews).
For
our own company and our innovations and products we have the
option of engaging in a patent search and in resultant licensing,
all of which is costly and fraught with risk (in that we alert
potential adversaries or competitors to our activities and may
not be able to afford or otherwise obtain licenses from them).
We know that any of our inventions or products are likely to
infringe on a number of granted and in-process patents and so
this is financially and logistically probably not a viable direction
for us or many other small innovators. I would estimate that
there are now many hundreds of companies and individual developers
in similar circumstances who would be forced to abandon efforts
or opt for acquisition by larger players in the face of this
impossible situation.
If
we are seeking to maximize the ability of innovation and open
markets to continue to benefit the public interest, then I see
no alternative but to fully support the open source community
approach as it is the only viable pathway to support the digital
commons at this time. Open source is not without its own IP
risks however. As Jan Hauser pointed out, current court challenges
to open source might prove that while the creator of the open
source IP might not be easily identifiable or held liable, those
who package and sell open source solutions might be open to
damages or have their business curtailed for IP infringement.
Microsoft is now taking legal steps to lock out open source
code from connecting with core Windows libraries. The open source
community is not without its powerful stakeholders and protectors
(IBM for example) willing to come to its defense in the face
of these court challenges.
Where
does this leave the software IP conservancy concept? What if
the conservancy was in fact an effort to help strengthen licenses
and institutions that already surround the biggest repository
of innovation, the open source software collective? Therefore
the conservancy function could be seen as another variation
of the current Creative Commons' artistic licensing effort.
In short:
1.
The CC conservancy might actuate itself as an organization whose
mission is to assist existing open source institutions develop
effective licenses and agreements to allow them to build their
business, market share, and defend the open source franchise.
There are a whole series of legal structures that focus on the
packaging of software and services that form a critical layer
above the open source products. It is at this level which many
companies will be attacked and a strong and evolving set of
instruments will aid them to build and defend their business.
Indeed, these agreements would form an open source legal code
of their own, working in parallel with the open source code
and enterprises they serve.
2.
The CC conservancy could therefore also assist new organizations
in their formation and in structuring standardized instruments
to permit them to build business around shared stakeholdership
of open source products and innovations. A business which attempts
to operate in the long term for public interest cannot do so
if it becomes an easy target for acquisition by a monopoly interest.
These enterprises need to be "hardened" to enable
them to maintain independence of operation and key knowledge
could be imparted to entrepreneurs seeking this path.
In
the above context, the CC conservancy might be thought of primarily
as a legal mentor, strategic counsel, and agreements repository.
Our
company is very interested in helping to co-found a new organization
we are calling the Intercommons
that will combine the powerful forces of eBay-like listings
of products and services, with the shared stakeholdership of
Dee Hock's Chaordic governance
model. A big hurdle for the formation of the Intercommons is
the obtaining of legal aid for its incorporation and the structuring
of online agreements between all parties who opt into membership.
If the Creative Commons, its supporters or a dedicated legal
clinic at one of the participating universities was to work
in partnership with us on the design of the Intercommons it
would provide a the catalyst for us to ramp up this effort.
Indeed, the end product would be an important new organizational
template for open source and the public domain protection of
innovation and free markets. In addition, if such a commitment
could be made by the CC or any of its supporters, our company
would be willing to work with its own partners in the formation
of the Intercommons and as a seed contribution place our innovations
and products into the Intercommons shared stakeholdership under
an open source license.
To
finish up, earlier this week a thought-provoking story by Bruce
Perens was carried on news.com:
"The Microsoft penalty that isn't"
http://news.com.com/2010-1075-882846.html
In
this story he concludes:
To foster open-source development, we need to provide developers
with a safe harbor from software patent prosecution.
I
think that is what the CC conservancy and the Intercommons should
and can be about.
Your
thoughts?
Bruce
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