If you participate in standards development organizations, open source foundations, trade associations, or the like (Organizations), you already know that you’re required to comply with antitrust laws. The risks of noncompliance are not theoretical – violations can result in severe …
This post was written by Lee Gesmer. It describes a case involving the scope of the most fundamental commitment that makes standards development and adoption possible. You can read more posts by Lee at https://masslawblog.com/ Antitrust law in the United States is regulated by both the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC). Usually, these two agencies are able to reach a common understanding on antitrust policy and enforcement. Infrequently, they find themselves in disagreement. Currently, the proper antitrust treatment of standard-essential patents and patent-holder commitments to make these patents available on “fair, reasonable and non-discriminatory terms” is such an occasion. The disagreement has come to a head in FTC v. Qualcomm, now on appeal before the Ninth Circuit.
Ninety-odd days ago, the US Bureau of Industry and Security (BIS) added Huawei and 68 of its affiliates to its “Entity List.” BIS added another 46 Huawei affiliates last week (collectively, “Huawei”), thereby making it illegal for US individuals and entities to disclose certain technology and software to Huawei and such blacklisted affiliates without a license. At the same time, it tempered the blow by issuing a Temporary General License that, among other things, allowed US entities to continue to participate with Huawei to develop 5G standards. For all other standards, Huawei’s continued participating would be legal only to the extent a given standard setting organization (SSO) either applied for, and received, a license from the BIS, or could credibly analogize its processes to an exception recognized under existing Export Administration Regulations (EAR). The closest exceptions are disclosures at public conferences and in connection with coauthoring journal articles. Ever since, standards setting organizations (SSOs) counting Huawei as a member have been scrambling, trying to figure what they can and cannot allow Huawei to do. On Monday of this week, three things happened that provided some answers. But almost all the answers were bad.
Yesterday, Microsoft announced it was pledging 60,000 patents under the Open Invention Network (OIN) license. While the move was historic, it was not surprising. Instead, it marks a logical culmination of a path the software giant tentatively embarked on as much as a decade ago. That evolution gained significant momentum accelerated with the departure of Steve Ballmer, and accelerated yet again as the success of the Linux distributed development model was replicated across more on more projects, covering technologies as varied as cloud computing, virtualization, and blockchains.
On the surface, the significance of Microsoft's joining OIN lies with its agreeing to the terms of the OIN license. But in joining OIN, Microsoft may in fact be acknowledging the power of a far older social force: the community taboo.
Almost nothing inspires a spirited discussion among the open source faithful as much as introducing a new open source license, or a major change in an existing license’s terms. In the case of version 3 of the GPL, the update process took years and involved dozens of lawyers in addition to community members. So, it’s no surprise that the pot is already boiling over something called the “Commons Clause.” How energetically? Well, one blog entry posted yesterday was titled The Commons Clause Will Destroy Open Source. The spark that turned up the heat was the announcement the same day by RedisLabs that it was adopting the license language.
The Supreme Court issued an opinion today that restricts the ability of patent owners to choose the court in which they bring an infringement suit. The case is called TC Heartland LLC v. Kraft Food Group Banks LLC, and the justices unanimously ruled in favor of the new restrictions.
On Monday, Google announced a new program intended to create an expanding umbrella of protection over its Android operating system and Google Applications pre-installed on devices that meet Android's compatibility requirements. Whether the new initiative will provide such protection, or represents only a “feel good” PR opportunity remains to be seen. If history and what’s visible so far are any indication, the odds tip towards the latter.
When standards developed by the private sector become laws, should anyone be able to download a copy for free? At first blush, the answer seems too obvious to debate. But yesterday, a U.S. district court held otherwise, saying that the developer of a standard that has been “incorporated by reference” (IBR) into a law continues to have the right to enforce its copyright. It also confirmed the right to charge a reasonable fee for an IBR standard.
The ruling (subject to appeal) is less surprising when it is reviewed in detail.
Once upon a time, if you asked a standards setting organization (SSO) what its intellectual property policy rights (IPR) policy was, you’d get a simple answer: “We own the copyright in everything we produce.” Today, if an SSO that develops standards in the technology arena were to give an answer like that, it would find that its members were heading for the exits.
What’s changed, of course, is that information technology has infiltrated almost every aspect of our existence, and that includes standards development as well. For example, an SSO that used to limit its attention to setting construction standards relating to heating and ventilation installations will now also host working groups developing standards for sophisticated building control systems.
For some years now, I've been a Fellow of a European think tank called the OpenForum Academy, which focuses on all things open: open standards, open source, open data, open research, and so on. It's an affiliate of a non-profit called OpenForum Europe, which advocates for same causes bofore the legislature and agencies of the European Union and those of its constituent states. The EU Parliament as well as governemtal agencies and legislatures in the U.K. and elsewhere have been actively engaged on these topics, and have welcomed this input.
OFE Academy is made up principally of an invited group of academics, journalists, technical experts and others that are recognized for their leadership and expertise in the area of openness (you can find a list of them here). Recently, the Academy launched a Fellow interivew series, and this week the interviewee happens to be me. Below I've pasted in a few outtakes from the much longer interview, which you can find here.