Can You Feel the Tension?

There's an important conference taking place in Brussels next week: "Tensions between Intellectual Property Rights and the ICT standardisation process: reasons and remedies - 22 November 2010". It's important because it has a clear bearing on key documents like the forthcoming European Interoperability Framework v2.

It all sounds jolly reasonable:

Key ICT standards are perceived by many as critical technology platforms with a strong public interest dimension. However, concerns are voiced that Intellectual Property Rights (IPRs) and their exclusivity potential, may hinder or prevent standardisation.

The European Commission and the European Patent Office (EPO) are organising a conference to address some specific issues on patents and ICT standards: are today’s IPR features still compatible with fast moving markets and the very complex requirements of ICT standardisation in a global knowledge economy environment? Where are problems that we can we fix?

Unfortunately, I can't go - actually, better make that *fortunately* I can't go, because upon closer inspection the agenda [.pdf] shows that this is a conference with a clear, er, agenda: that is, the outcome has already been decided.

You can tell just by its framing: this is "a conference to address some specific issues on patents and ICT standards". ICT is mostly about software, and yet software cannot be patented "as such". So, in a sense, this ought to be a trivial conference lasting about five minutes. The fact that it isn't shows where things are going to head: towards accepting and promoting patents in European standards, including those for software.

That's not really surprising, given who are organising it - the European Commission and the European Patent Office (EPO). The European Commission has always been a big fan of software patents; and the EPO is hardly likely to be involved with a conference that says: "you know, we *really* don't need all these patents in our standards."

Of course, the opposite result - that patents are so indescribably yummy that we need to have as many as possible in our European ICT standards - must emerge naturally and organically. And so to ensure that natural and organic result, we have a few randomly-selected companies taking part.

For example, there's a trio of well-known European companies: Nokia, Ericsson and Microsoft. By an amazing coincidence - as an old BBC story reminds us - all of them were fervent supporters of the European legislation to make software patentable:

Big technology firms, such as Philips, Nokia, Microsoft, Siemens, and telecoms firm Ericsson, continued to voice their support for the original bill.

So, no possible bias there, then.

Then there are a couple of outfits you may have heard of - IBM and Oracle, both noted for loving software patents slightly more than life itself. So maybe a teensy bit of bias there.

But wait, you will say: you are being totally unfair. After all, is there not an *entire* massive one-hour session entitled "Open source, freely available software and standardisation"? (although I do wonder what on earth this "freely available software" could be - obviously nothing so subversive as free-as-in-freedom software.)

And it's true, that session does indeed exist; here's part of the description:

This session will explore potential issues around standardisation and the topic of open source software and free licences. We will look at examples of how standards are successfully implemented in open source. We will also consider licensing issues that may exist regarding the requirement to pay royalties for patents present in standards, as well as other licensing terms and conditions in relation to the community approach common in open source and free software technology development.

But what's the betting that those "examples of how standards are successfully implemented in open source" will include rare and atypical cases where FRAND licences have been crafted into a free software compatible form, and which will then be used to demonstrate that FRAND is the perfect solution for ICT licensing in Europe?

Luckily, we have Karsten Gerloff from the FSFE to fight against the software patent fan club, and tell it as it is. Pity he's on his own on this though - and no, poor Erwin Tenhumberg does not count. He may be "Open Source Programme Manager, SAP", but SAP is one of the fiercest proponents of patenting software in Europe, as I've discussed a couple of times.

So this leaves us with Karsten against the collective might of the European Commission, EPO, Microsoft, Nokia, Ericsson, IBM, Oracle and SAP: clearly they'll be some of that "tension", as the conference title promises, but a fair fight conducted on a level playing-field? Not so much....

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SAP Slouches Towards Bethlehem

Readers with a taste for high comedy may remember my post “Why SAP is Such a Sap over Software Patents”, which rather took to task a certain large German software company over its stance on software patents. Now, to be fair, SAP has done some good things for free software – not many, but some – and Matthew Aslett has produced an excellent summary of these on his 451 CAOS Theory blog, which I urge you to read.

On Open Enterprise blog.

Why SAP is a Sap

There's some interesting turbulence in the blogosphere about the following call from Dr. Vishal Sikka, Chief Technology Officer (CTO) of SAP:

To ensure the continued role of Java in driving economic growth, we believe it is essential to transition the stewardship of the language and platform into an authentically open body that is not dominated by an individual corporation. Java should be free of any encumbrances to permit fair competition between compatible implementations for the benefit of customers. By preserving the integrity of Java, the IT industry can ensure a vibrant developer community and continued innovation for enterprise software customers. This ensures the continued global economic success brought about through open innovation.

Matt Asay rightly calls him out on this:

Irony, thy name is SAP.

SAP, after all, is hardly the most open-source or open-process friendly company on the planet. Despite early involvement in Eclipse, some interaction with MySQL (MaxDB), and a new commitment to the Apache Software Foundation, SAP remains a firmly proprietary company.

Even Microsoft, which arguably has the most to lose from open source, has consistently and continually experimented with greater open-source involvement.

SAP? Not so much. In large part, SAP hasn't been forced to embrace open source because it hasn't been threatened by it. ERP (enterprise resource planning) is such a complex beast that it has remained largely impervious to open source (with the exception of open-source start-ups like Compiere and Openbravo, to which I'm an adviser).

Now, Dirk Riehle is stepping into the fray:

I don’t think that this is a fair critique. SAP has always provided the source code of its main business applications suite to user-customers as part of a commercial license, and users have always customized SAP’s business suite to their heart’s content. In fact, it is the only way to make it work for their needs.

That may well be the case, but I think it's irrelevant.

The real reason SAP's call is hypocritical is this document [.pdf], essentially a love-letter to software patents, submitted as an amicus curiae brief to the European Patent Office. Software patents are simply incompatible with free software, because they are government-granted monopolies designed to *stop* people sharing stuff. They also prevent hackers from writing new code because they represent an ever-present digital sword of Damocles hanging over them.

SAP simply cannot claim to be a true friend of openness while it also supports software patents in any jurisdiction, in any form - the same applies to other companies, too, I should note. They can share as much code as they like, but until they repudiate software patents - for example, by placing their patent portfolios in the public domain - that's little more than window-dressing.

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SAP: Open Source's Friend or Foe?

For an outfit that calls itself “the world's largest business software company”, the German software giant SAP is relatively little-known in the open source world. With 51,500 employees, a turnover of 11.5 billion euros ($16 billion) last year, and operating profits of 2.7 billion euros ($3.8 billion), SAP is clearly one of the heavyweights in the computer world. Given that huge clout, SAP's attitude to open source is important; and yet it is hard to tell whether it is really free software's friend or its foe....

On Linux Journal.

Rumour: Microsoft to Buy SAP?

I don't normally comment on rumours, but this one is too plausible:

Microsoft Corp Chief Executive Steve Ballmer on Tuesday said speculation the company may buy German software firm SAP (SAPG.DE) was a 'random rumour.'

"I have nothing to say about rumours of acquisitions ... positively or negatively," he told reporters in Mumbai, when asked about an acquisition of SAP.

"It strikes me as a random rumour."

Microsoft, the world's top software firm, on Monday sold a $3.75 billion debt issue, sparking talk that it could be readying a bid for the German firm.

SAP's Co-Chief Executive Leo Apothekar said on Monday he believed the business software maker should stay independent, following the fresh speculation in European markets that Microsoft could bid for it.

Irrespective of rumours, Microsoft would be the perfect suitor for SAP since the latter is one of the last major bastions of proprietary software in Europe, and favours software patents.

That's no surprise, since Enterprise Resource Planning - SAP's heartland - is one of the few software sectors where open source has failed to make significant headway yet, and software patent monopolies are a great way to lock out up-and-coming free alternatives to high-priced closed-source solutions.

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SAP True to its Name

What is going through the mind of SAP? These people are *promoting* your products:

Business Objects claims that no one can use a Crystal Reports screenshot in a book without their approval. They sent letters to courseware vendors (including me) telling use that we need to get permission to use screenshots in our books. Most vendors ignored those letters and nothing more was said in the three years since. Now it appears that more letters are going out from SAP (who now owns Business Objects). I read one of the letters this past week and it talks about screenshots and adds a new warning about using SAP trademarks like the term “Crystal Reports”. The letter was very impressive, with majestic references to various sections of US copyright and trademark law. Sprinkled throughout the letter was the Latin incantation “inter alia” to make it seem almost pontifical. It sounded so ominous that it brought to mind the blustering Wizard of Oz (”ignore the little man behind the curtain”).

As I explained in 2005, using screenshots of a software product in a book is a “fair use” of a copyrighted work (see Sony vs Bleem). And there are also several clear cases to show that “nominal” use of a trademark word or phrase is fine for any purpose at all, so long as you are not claiming to be affiliated with or authorized by the trademark holder (see Volkswagen vs Church).

(Via Techdirt.)

The Theory and Practice of the Software Forge

On Open Enterprise blog.

Erwin Is A-goin'

Erwin Tenhumberg has been one of the closest observers of OpenOffice.org's growing strength. So his announcement that he is moving from Sun - a company that, for all its faults, really seems to get open source - to SAP, a company, for all its strengths, seems utterly witless in this area, surprised me.

I suppose it would be too much to hope that SAP has finally got a clue....

Explaining Open Source's Exponential Growth

On Open Enterprise blog.

Copping a Load of COPU

As I've lamented before, open source usage in China is hard for us outside to gauge. Even the open source structures there are difficult to discern. So news that the Linux Foundation is linking up with something called the Chinese OSS Promotion Union is interesting:

COPU now has over 300 members, covering nearly all the domestic enterprises and public institution units in the field of open source, including all the Linux distributions including Red Flag, Co-Create, China Standard Soft, TurboLinux, and Sun Wah, universities (over 200), and institutes for scientific research, standard, law and industry. COPU also has over 20 multinational companies as its members who have their representative offices or branches in China including IBM, Intel, HP, Sun, Oracle, SAP, NEC, CA, BEA, Hitachi, Sybase, France Telecom, MontaVista, and Google.

Look, the Dinosaurs Are Mating

Oh yeah. Pity about the asteroid, though....

No EU Software Patents?

Hm, were this not on the European Patent Office's own site, I might have doubted its authenticity:

Where do we stand in the discussion about patents on computer-implemented inventions (CII patents) two years after rejection in the European Parliament? This was the perspective under which the EPO had invited members of the European Parliament, representatives from industry and enterprise, NGOs and IP specialists to review developments since the rejection of the CII directive.

The bottom line (literally)?

All speakers welcomed unequivocally the opportunity to discuss the issue at a high level and made clear that a new CII debate followed by legal modifications was neither necessary nor desirable.

Wearing my cynical journalist's hat, I suppose this might mean that companies in favour of software patents (like SAP, which emerges once again as the Big Baddie of Europe in all this), think they'll be able to squeeze through their wretched computer implemented inventions under the present scheme.

Still, the EPO story's headline "No revival of software patents debate" is a good marker to have. (Via Slashdot.)

So That's Why They Call the Company SAP

SAP AG will not be impacted by open source ERP software, chief executive Henning Kagermann is adamant.

Despite evidence of open source creep, Kagermann thinks it is still a database and OS-level model. He tackled the rise of open source in a recent interview with ComputerWire.

“It is an option for operating systems and databases but not at the business application level,” he said. “There are no open source ERP products that are any good for the high end, although it could be argued that they could be developed for the low end.”

So writes Angela Eager - who, parenthetically, used to work for me: wotcha, Angela.

Poor old SAP: the fact that proprietary software vendors in every market - including operating systems and databases - have said precisely the same thing when challenged by open source from below seems not to have penetrated the poor chap's skull. ERP is not special (and open source ERP is flourishing.)

So let's say it in easy-to-understand terms: you cannot defend yourself from low-end creep by pinning your hopes on up-market products. Try reading The Innovator's Dilemma to find out why.

SAP's Success is Being Sapped

SAP is a strange company. Largely unknown to the general public (at least outside its native Germany), it is large, and until now, hugely successful in its chosen field of Enterprise Resource Management. It is also a dinosaur and doomed. Indicative of this is its very ambivalent attitude to open source, which some of its executives show little sign of understanding.

This story from the Reg confirms my suspicions: that its power is being sapped by rival closed-source companies. Just wait until the up-and-coming open source ERP companies start hitting their stride....