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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"

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?


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