intellectual property – Factory Joe

During this morning’s keynote at OSCON, David Recordon announced the formation of the Open Web Foundation (his slides), an initiative with which I am involved, aimed at becoming something akin to a “Creative Commons for patents”, with the intention of lowering the costs and barriers to the development and adoption of open and free specifications like OpenID and OAuth.

As I expected, there’s been some healthy skepticism that usually starts with “Another foundation? Really?” or “Wait, doesn’t [insert other organization name] do this?”

And the answers are “Yes, exactly” and “No, not exactly” (respectively).

I’ll let John McCrae explain:

…every grass roots effort, whether OpenID, OAuth, or something yet to be dreamt up, needs to work through a whole lot of issues to go from great idea to finalized spec that companies large and small feel comfortable implementing. In particular, large companies want to make sure that they can adopt these building blocks without fear of being sued for infringing on somebody’s intellectual property rights. Absent the creation of this new organization, we were likely to see each new effort potentially creating yet-another-foundation to tackle what is essentially a common set of requirements.

And this is essentially where we were in the OAuth process, following in the footsteps of the OpenID Foundation before us, trying to figure out for ourselves the legal and intellectual property issues that stood in the way of [a few] larger companies being able to adopt the protocol.

Now, I should point out that OAuth and OpenID are the result of somewhat unique and recent phenomena, where, due to the low cost of networked collaboration and the high value of commoditizing common protocols between web services, the OAuth protocol came together in just under a year, written by a small number of highly motivated individuals. The problem is that it’s taken nearly the same amount of time trying to developer our approach to intellectual property, despite the collective desire of the authors to let anyone freely use it! This system is clearly broken, and not just for us, but for every group that wants to provide untethered building blocks for use on the open web — especially those groups who don’t have qualified legal counsel at their disposal.

That other groups exist to remedy this issue is something that we realized and considered very seriously before embarking on our own effort. After all, we really don’t want to have to do this kind of work — indeed it often feels more like a distraction than something that actually adds value to the technology — but the reality is that clarity and understanding is actually critical once you get outside the small circle of original creators, and in that space is where our opportunity lies.

In particular, for small, independent groups to work on open specifications (n.b. not standards!) that may eventually be adopted industry-wide, there needs to be a lightweight and well-articulated path for doing the right thing™ when it comes to intellectual property that does not burden the creative process with defining scope prematurely (a process that is costly and usually takes months, greatly inhibiting community momentum!) and that also doesn’t impose high monetary fees on participation, especially when outcomes may be initially uncertain.

At the same time, the final output of these kinds of efforts should ultimately be free to be implemented by all the participants and the community at large. And rather than forcing the assignment of all related patents owned by all participants to a central foundation (as in the case of the XMPP Foundation) or getting every participant to license their patents to others (something most companies seem loathe to do without some fiscal upside), we’ve seen a trend over the past several years towards patent non-assert agreements which allow companies to maintain their IP, to not have to disclose it, and yet to allow for the free, unencumbered use of the specification.

If this sounds complicated, it’s because it is, and is a significant stumbling block for many community-driven open source and open specification projects that aim for, or have the potential for, widespread adoption. And this is where we hope the Open Web Foundation can provide specific value in creating templates for these kinds of situations and guiding folks through effective use of them, ultimately in support of a more robust, more interoperable and open web.

We do have much work ahead of us, but hopefully, if we are successful, we will reduce the overall cost to the industry of repeating this kind of work, again, in much the same way Creative Commons has done in providing license alternatives to copyright and making salient the notion that the way things are aren’t the only way they have to be.

There’s been some great pickup of the DiSo Project since Anne blogged about it on GigaOM.

I’m not really a fan of early over-hype, but fortunately the reaction so far has been polarized, which is a good thing. It tells me that people care about this idea enough to sign up, and it also means that people are threatened enough by it to defensively write it off without giving it a shot. That’s pretty much exactly where I’d hope to be.

There are also a number of folks pointing out that this idea has been done before, or is already being worked on, which, if you’re familiar with the microformats process, understand the wisdom in paving well-worn cow paths. In fact, in most cases, as Tom Conrad from Pandora has said, it’s not about giving his listeners 100% of what they want (that’s ridiculous), it’s about moving from the number of good songs from six to seven out of a set of eight. In other words, most people really don’t need a revolution, they just want a little more of what they already have, but with slight, yet appreciable, improvements.

Anyway, that’s all neither here nor there. I have a bunch of thoughts and not much time to put them down.

. . .

I’ve been thinking about mortality a lot lately, stemming from Marc Orchant’s recent tragic death and Dave Winer’s follow up post, capped off with thinking about open data formats, permanence and general digital longevity (when I die, what happens to my digital legacy? my OpenID?, etc).

Meanwhile, and on a happier note, I had the fortunate occasion to partake in the arrival of new life, something that, as an uncle of ~17 various nieces and nephews, I have some experience with.

In any case, these two dichotomies have been pinging around my brain like marbles in a jar for the past couple days, perhaps bringing some things into perspective.

. . .

Meanwhile, back in the Bubble, I’ve been watching “open” become the new bastard child of industry, its meaning stripped, its bite muzzled. The old corporate allergy to all things open has found a vaccine. And it’s frustrating.

Muddled up in between these thoughts on openness, permanence, and on putting my life to some good use, I started thinking about the work that I do, and the work that we, as technologists do. And I think that term shallow now, especially in indicating my humanist tendencies. I don’t want to just be someone who is technologically literate and whose job it is to advise people about how to be more successful in applying its appropriate use. I want to create culture; I want to build civilization!

And so, to that end, I’ve been mulling over imposing a mandate on the DiSo Project that forces all contributions to be released into the public domain.

Now, there are two possible routes to this end. The first is to use a license compatible with Andrius Kulikauskas‘ Ethical Public Domain project. The second is to follow the microformats approach, and use the Creative Commons Public Domain Dedication.

While I need to do more research into this topic, I’ve so far been told (by one source) that the public domain exists in murky legal territory and that perhaps using the Apache license might make more sense. But I’m not sure.

In pursuing clarity on this matter, my goals are fairly simple, and somewhat defiant.

For one thing, and speaking from experience, I think that the IPR process for both OpenID and for OAuth were wasteful efforts and demeaning to those involved. Admittedly, the IPR process is a practical reality that can’t be avoided, given the litigious way business is conducted today. Nor do I disparage those who were involved in the process, who were on the whole reasonable and quite rational; I only lament that we had to take valuable time to work out these agreements at all (I’m still waiting on Yahoo to sign the IPR agreement for OAuth, by the way). As such, by denying the creation of any potential IP that could be attached to the DiSo Project, I am effectively avoiding the need to later make promises that assert that no one will sue anyone else for actually using the technology that we co-create.

So that’s one.

Second, Facebook’s “open” platform and Google’s “open” OpenSocial systems diminish the usefulness of calling something “open”.

As far as I’m concerned, this calls for the nuclear option: from this point forward, I can’t see how anyone can call something truly open without resorting to placing the work firmly in the public domain. Otherwise, you can’t be sure and you can’t trust it to be without subsequent encumbrances.

I’m hopeful about projects like Shindig that call themselves “open source” and are able to be sponsored by stringent organizations like the Apache foundation. But these projects are few and far between, and, should they grow to any size or achieve material success, inevitably they end up having to centralize, and the “System” (yes, the one with the big es) ends up channeling them down a path of crystallization, typically leading to the establishment of archaic legal institutions or foundations, predicated on being “host” for the project’s auto-created intellectual property, like trademarks or copyrights.

In my naive view of the public domain, it seems to me that this situation can be avoided.

We did it (and continue to prove out the model) with BarCamp — even if the Community Mark designation still seems onerous to me.

And beyond the legal context of this project, I simply don’t want to have to answer to anyone questioning why I or anyone else might be involved in this project.

Certainly there’s money to be had here and there, and it’s unavoidable and not altogether a bad thing; there’s also more than enough of it to go around in the world (it’s the lack of re-circulation that should be the concern, not what people are working on or why). In terms of my interests, I never start a project with aspirations for control or domination; instead I want to work with intelligent and passionate people — and, insomuch as I am able, enable other people to pursue their passions, demonstrating, perhaps, what Craig Newmark calls nerd values. So if no one (and everyone) can own the work that we’re creating, then the only reason to be involved in this particular instance of the project is because of the experience, and because of the people involved, and because there’s something rewarding or interesting about the problems being tackled, and that their resolution holds some meaning or secondary value for the participants involved.

I can’t say that this work (or anything else that I do) will have any widespread consequences or effects. That’s hardly the point. Instead, I want to devote myself to working with good people, who care about what they do, who hold out some hope and see validity in the existence of their peers, who crave challenge, and who feel accomplished when others share in the glory of achievement.

I guess when you get older and join the “adult world” you have to justify a lot more to yourself and to others. It’s a lot harder to peel off the posture of defensiveness and disbelief that come with age than to allow yourself to respond with excitement, with hope, with incredulity and wonder. But I guess I’m not so much interested in that kind of “adult world” and I guess, too, that I’d rather give all my work away than risk getting caught up in the pettiness that pervades so much of the good that is being done, and that still needs to be done, in all the many myriad opportunities that surround us.

Tag: intellectual property

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