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To read comments to this article, go here
IBM Donates Cloudscape to Apache Foundation & MS's Patent Purpose
Tuesday, August 03 2004 @ 02:58 AM EDT

Reuters (and everybody else) has the news that IBM is donating Cloudscape, a database program written in Java, to the Apache Foundation:

"International Business Machines says it is offering one of its database program codes to the open source community. IBM said that current programming code of Cloudscape, a database product written in Java programming language, will be given to nonprofit Apache Software Foundation that spearheads open source projects. IBM estimated the value of its contribution to be about $85 million (45 million pounds). The open source project will be called Derby.

"Software written in Java can run on computers with Microsoft Windows as well as other operating systems. 'Our whole motivation is to accelerate more innovation,' around Java, said Janet Perna, general manager of IBM's data management business. She said IBM uses Cloudscape in more than 70 of its products. 'If we found this useful,' others would also find it useful, she said."

I am not positive about the *whole* motivation part, but any way you look at it, it's a lovely gift. Cloudscape has more than a half a million lines of code.

Here is IBM's description of Cloudscape:

"IBM Cloudscape provides developers a small footprint, standards- based Java database that can be tightly embedded into any Java based solution.

"Embeds directly in your Java application providing a silent install, zero admin database so you don't need to deploy a DBA along with your application.

"Supports complex SQL, transactions and JDBC so that your applications can be migrated to DB2 UDB when they need to grow.

"Supports data encryption on disk via JCE for secure operation in hostile environments."

The NYTimes mentions [sub reqd] that they are donating it to the "public domain" but then says that Apache "will hold the licensing and intellectual property rights to the Cloudscape code."

It can't be both, because they are mutually exclusive. If it's public domain, there are no IP rights and no licensing. The Apache Foundation uses various licenses, depending on what it is they are licensing, which you can read about on their Licenses page. But here is the Apache License, Version 2.0, the likely choice, which they say may or may not be compatible with the GPL. They're in discussions with FSF, or have been. The full explanation of the issues can be found here. It's OSI-approved, for sure, an open source license on the approved list. It includes a grant of patent license clause:

"Grant of Patent License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed."

Here's what the Free Software Foundation says about Apache License Version 2 on their page of various software licenses:

"Apache Software License, version 2.0

"This is a free software license but it is incompatible with the GPL. The Apache Software License is incompatible with the GPL because it has a specific requirement that is not in the GPL: it has certain patent termination cases that the GPL does not require. (We don't think those patent termination cases are inherently a bad idea, but nonetheless they are incompatible with the GNU GPL.)"

Maybe the next version of the GPL will include a patent termination clause, if they decide it would be a good idea. Personally, I like the idea fine. But I'm not a lawyer, and there are issues to consider, as you saw on the Apache page explaining their view of the matter. As they point out, their goals are not identical with the FSF. But the point is this: by picking a license with a no-patent infringement clause, IBM is telling us something. They get it. Here's a contrast for you.

Microsoft's Patent Purpose

We don't have to wonder about the patents Microsoft is accumulating, as to what they are for. Newsweek's Brad Stone has done a timely interview with the man behind the new Microsoft patent strategy, Marshall Phelps. He is the ex-IBM lawyer who got IBM to patent everything it could in the early 90s and got hired by Microsoft to do the same for them in the last year. After all, Microsoft is a monopoly in a tech world where everyone needs to interoperate, so why not patent everything they control and then sit back in their castle, light a cigar, and make the serfs of the world pay to pass on the road?

Set up toll booths everywhere on the monopoly and rake in the dough. It beats working. But here's the fun, new twist: they will refuse to let GPL users pass. Thus the GPL ends up in its own restricted ghetto, with a wall around it. It can't go anywhere outside the ghetto. While the GPL slowly starves to death, make money from everybody else, capitalizing on two facts: Microsoft is ubiquitous; and in a tech world, everybody needs to be able to interoperate:

"In the last year, both Microsoft and Hewlett-Packard have started licensing programs. In the process, they have struck fear in the hearts of some who consider such programs akin to blackmail: pay us for the right to interact with our technology, or else you’ll hear from our lawyers. . . .

"By the late ’90s, businesses like wireless firm Qualcomm and memory-chip company Rambus were doing almost nothing but this: inventing and patenting a cornerstone technology such as the popular mobile-phone protocol CDMA, offering a license to it, then enforcing the license with implicit (or explicit) threats. Last year even Hewlett-Packard—once known for the gentle 'HP Way'—jumped into the fray, consolidating all its intellectual property from its own R&D labs and from its purchase of PC maker Compaq, and offering licenses. 'We’re not here to shut people down,' says Joe Beyers, HP’s vice president of IP licensing, 'but we’ll do it if we have to.' Surprise: it has to. HP says it owns some of the key innovations in, among other things, lightweight laptops, and has sued archenemy Gateway, which won’t pay the license fee.

"The patent portfolios of Microsoft and HP are so substantial that it becomes impossible to take a drive without passing through their toll booths. The overtaxed U.S. Patent and Trademark Office often grants absurdly broad patents that reflect little actual innovation. . . .

"Marshall Phelps tries to dispel the notion that Microsoft is preparing a patent assault on open-source software. He notes that at IBM he never initiated a single lawsuit and says, 'I’m not running a litigation shop, I’m running a licensing shop.' He adds he took the job only when Gates promised him he wanted to change the way Microsoft 'interfaced' with the technology world and argues that licensing 'is inherently pro-competitive.' But when asked if Microsoft would license its technology to rivals in the open-source community, Phelps says that 'somebody who is taking software pursuant to the GPL cannot take a license … Section 7 [of the GPL] is its own world.' . . .

"Such discord is often the precursor to future legal imbroglios. As history amply shows, when it comes to wielding something as valuable and dangerous as patents, it’s hard to play nice."

Especially if you aren't really trying. Actually, as usual, MS's lawyer doesn't grok the GPL. That's their Achilles' heel. But that is the plan.

It's the ultimate solution, then. As usual with ghettos, its residents are to blame for their problems. They would insist on using that loathsome GPL.

The proud, smartypants lawyer boasting about the monopoly's scheme must have forgotten that his company is currently being scrutinized by the EU Commission for antitrust activities. And he just told the world all about Microsoft's anti-competitive plan. Yoohoo, Europe. Could you make a note and think about this revelation about how Microsoft intends to use their patents before you decide to set up a US-style monopoly-enabling system over there? And Mr. Monti. I hope you are reading Newsweek, because Microsoft's lawyer just told the world they plan to game the patent system to use their monopoly position to destroy their main competition.

Woops.


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