International Characters (IC) is an open source ‘spin-out’ company formed around work done by Dr Rob Cameron of Simon Fraser University in Vancouver, Canada. Professor Popowich has a software patent pending on the core technology that is embodied in their software, which aims to accelerate the processing of XML bitstreams.
For example, our open source u8u16 software achieves 3X to 25X speed-ups for conversion of UTF-8 character data to UTF-16, depending on platform and input data characteristics. Download u8u16 from Prof. Cameron’s development website at u8u16.costar.sfu.ca. Note that the performance improvements cited even include the cost of conversion to and from parallel bit stream form.
Our Parabix (TM) software is the core high-speed XML processing engine based on parallel bit stream technology and available from its development website at parabix.costar.sfu.ca.
(quoted from http://www.international-characters.com/node/7)
Now traditionally there has been a strong affiliation between the free and open source software community and the groups which oppose the granting of patents on software. Software patents tend to be viewed in these circles as a cudgel in the arsenal of proprietary software vendors who wish to control competition from their rivals in both the closed and open source worlds. It does not help that there is a universally acknowledged worldwide problem with the examination of software patents, caused by the lack of good prior art databases and examiners familiar with the topic. Thus many software patents are granted which seem – at least superficially – to be non-innovative or overbroad. So is SFU’s company unaware of these tensions between the worlds of open source and software patents?
It seems unlikely given that IC’s legal thinking is provided by Larry Rosen. Rosen is a grandfather of the open source community, and has been general counsel for the Open Source Initiative (OSI). He also wrote two of the licences on the OSI’s approved list – the Academic Free License (a permissive licence) and the Open Source License (a copyleft license). IC uses these licences in combination with their (pending) patent to implement a novel open source business model. Essentially the deal is this: IC make their software available under the Open Source License 3.0, which obliges derivative works to be released under the same licence. In addition to this licence, IC provide a Covenant Not To Assert their patent rights against any open source software that implements their patent, with certain interesting provisos. The covenant defines an ‘open source licence’ as any licence approved by either the Open Source Initiative or the Free Software Foundation, but narrows the generally understood definition of ‘open source software’:
The term “open source software” in this covenant shall mean software actually distributed to the public under software licenses that have been expressly approved by Open Source Initiative or the Free Software Foundation as of the date of this covenant, and that provide that every licensee is free to make copies of the software or derivative works thereof, to distribute them without payment of royalties or other consideration, and to access and use the complete source code of the software.
By inserting the phrase ‘actually distributed to the public’, Rosen excludes from the covenant adaptations made and kept in-house. Companies and institutions must either distribute to all or pay a patent licensing fee to IC. The covenant also draws a distinction between the software in itself and the software when distributed in combination with hardware. End users who put the software on their computer themselves are covered by the covenant, but distributors who wish to sell hardware with the software pre-installed are not, and must pay up. (It’s worth remembering that here ‘the software’ does not refer to IC’s actual code, which is under the OSL and thus has its own patent grant, but any and all other software which implements IC’s patent).
So what we have here is a novel form of dual-licensing that realises value from the monopoly granted by a software patent while granting wide-ranging no-cost usage and distribution rights to the open source and academic communities. It is almost certain to be controversial in some areas of the community, both for its implicit acceptance of the appropriateness of software patents and its shaving down of some of the communities (internal adapters, hardware vendors) who have up to now been able to avoid payment of licence fees for their use of open source.
You can see Rosen discuss IC here.
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