IBMs Giveaway Should Play Well

Opinion: Release of patented code will look good to Congress and win some favor in open-source community.

IBMs announcement that it will release some 500 patents for work on open-source software projects may look like a straightforward business announcement.

But in an atmosphere where more IT professionals are paying attention to copyright and patents, its also a political statement.

The announcement made Tuesday is the sort of do-good stuff that shows up in speeches and comments made by senators and congressmen anxious to curry favor with the tech community.

Listen carefully and you cynics out there will be able to hear Rep. Rich Boucher (D-Va.) holding forth on the value of IBMs contribution to a more open, viable Web. More companies, Boucher will almost certainly say when he gets the chance, should follow IBMs lead.

Now, Boucher is one of the more clued-in members of Congress when it comes to software patents and copyright. He understands the issues and is politically savvy about what needs to be done. But hes no code jock. And thats where the trouble may lie, because IBMs announcement may well be a case of making a virtue out of necessity.

Given the companys willingness to embrace open-source projects such as Apache server software, it could be that IBM wouldnt be able to enforce many of the patents it has received.

The company says it is "not obligated" to release the patents and emphasizes the importance of its decision to make the 500 patents available. "We feel theyll be valuable, says a spokeswoman. "Hopefully, it will change the way patents are looked at."

But its not unusual for open-source agreements to say there wont be any "yours, mine, ours" sorting out when the project is completed. "In many open software licenses, if you use it—open-source code—you often are required to license back to others who have also worked on the project," says Danny Weitzner, technology and society domain leader for the World Wide Web consortium.

In other words, IBM couldnt realistically enforce some of its released patents because open-source licensing agreements are in place. And it couldnt sue anyone using them, either. So it made sense to free them up for more open-source exploitation.

/zimages/6/ Senior Editor Steven J. Vaughan-Nichols has also weighed in on IBMs move. Click here to read his view.

Why? Well, perhaps IBM has found other ways to make money. "IBM is saying, in some ways, that the software business is moving on, says Weitzner. And not just with licensing. The company recently sold its PC business and has increasingly focused on providing services to its customers.

In that environment, whats done with the software—not how its packaged and sold—is where IBM makes its money.

Such subtleties are often lost on political types who still think IBM builds computers like the one that went up against Chess Master Gary Kasparov. The ideological all-or-nothing war thats being waged in Washington over copyrights and patents isnt helping, either.

On one side sits the completely open-source community, developers and others who point to the keystones of the Internet—HTML and TCP/IP—as examples of the need to keep software free and easily available. Neither is covered by patents or other controls.

On the other side sit companies that have created large businesses by hiring people to invent things, then exploiting those inventions. The fear that many large companies have about losing control over their inventions and innovations is personified by former Microsoft CTO Nathan Myhrvolds new company, Intellectual Ventures, which is dedicated to finding, buying and claiming patents.

Clearly Myhrvold and his backers see patents as a future source of revenue thats only going to be more important in the future.

That thinking seems at odds with IBMs, which is why this announcement, although praised by open-source proponents, has the potential to create legislative havoc.

Unable to make sense of whats going on—whos right, whos wrong—Congress will throw up its hands and do nothing. Thats great if you like the current system—and most big companies, including IBM, do—but not so nice to the open-source evangelists.

The bottom line: IBM has played some smart politics here. It has satisfied its obligations under open-source agreements, it has racked up brownie points with the open-source community, and it has created a kind of political confusion that will help it exploit its new patents. Its a clever strategy that just might work to the advantage of IBM and its competitors.

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