Forum OpenACS Q&A: the dilemma of competition in development of ACS

Hi all, this is a repost of a comment from the News area.

How does ARSdigita's change in contract (legally) affect the posting
of new ideas for modules in the OpenACS development process?

situation:

1. ARSdigita declares all new development as proprietary (preferring
competition over cooperation?)

2. I am planning on suggesting (and developing) some significant
functional modules for OpenACS (based on years of proprietary
development on another platform). I want to post the ideas for the
modules in the suggestion area to help spur interest in the project
(and the value of OpenACS).

3. I will not begin developing the modules until Spring 2002. [I have
previous obligations and need to learn about development of the
OpenACS.]

Potential dilemma:

If the module ideas are posted, could ARSdigita run with the ideas
(before OpenACS develops them) and patent (or otherwise legally
protect) the code, thereby preventing OpenACS from developing the
original idea (or increasing the development burden in any case)?

If this is a valid risk, how should these kinds of circumstances be
handled?

Should I wait to post ideas until ready for development?

I wouldn't worry about it, frankly.  That's just my own opinion, of course.
Thanks Don.

As a now self-exiled ARSdigita homestudy student (according to OpenACS recommendations for openACS developers  to not download new versions of ARSdigita's ACS ( https://openacs.org/about/licensing/adpl ), I want to reduce internal turmoil.  [Aren't most battles we fight within ourselves? ie. see the movie Fight Club.]  Let me first state that I have no quarrels with ARSdigita as a community and business entity.  I want to secure interest (legal right) to develop intellectual property for the benefit of society under the GPL without obstruction from legal positioning and protectionism. I believe the current ARSdigita license creates a potential paradox based on farming the goodwill of OpenACS developers.  Legal contracts have implications, and after investing thousands of hours of work, I don't want to publish a variation and loose the right to use it.

What happens when OpenACS developers create code that ARSdigita modifies and subsequently patents? [assuming OpenACS developers won't patent code in general.] Will OpenACS developers be subject to withdrawing modules and scrapping work?  There are many cases in patent law where ideas are "stolen" [again, *no* idea is original], and inventors are subject to protectionist actions by others.

I am not a natural programmer (but program). I have little experience with CVS, but have written thousands of lines of code. Therefore, I would expect development of the modules to be slow at first.  Whereas, I'd expect ARSdigita's development process to be fast.

The modules (to be posted) are not original ideas in the greater scheme of things  --few ideas are really original. Complete applications exist on other platforms. So, I'm not concerned about existing or future patent infringements from other sources. The application is different enough (due in part to the platform and the method) to be unique (for the moment).  Internet standards suggest that the modules will inevitably be created, whether or not I participate.

Why worry about OpenACS' relationship with ARSdigita? Perhaps I'm paranoid, but I find OpenACS' relationship with ARSdigita increasingly ambiguous and precarious.  The OpenACS platform is based on ACS, the resulting similarity in code combined with their rapid development would likely leave any original developer in a legal bind if ARSdigita decides to enforce its contract.  ARSdigita would have to enforce its contract or risk losing legal powers of the contract.

On behalf of OpenACS developers, I would like to see ARSdigita's contract include some kind of stipulation that reduces liability etc (and perhaps takes a more cooperative role such as shared ownership on components shared with OpenACS--ie in dispute of ownership).

I would address this directly with ARSdigita, but I don't represent OpenACS or ARSdigita. And in any case, I'm surely not credible in the eyes of ARSdigita's lawyers (and perhaps anyone else for that matter). Hopefully, these comments stand on their own.

Disclaimer: In the current climate of the OpenACS-aD relationship, it seems that the both sides are very sensitive. Having been among the, um, voiciferous critics of aD, I feel compelled to qualify all statements with I'M NOT TRYING TO START A FIGHT. Torben, I understand your fears, but I'm not sure you need worry. The problems which can conflict and violate the aDPL are when one takes their code and implements concepts or code derived directly from their implementation. If aD can prove that a person took a portion of their system and implemented an exact replica, either in java or otherwise, then that person has violated the aDPL. Of course it goes the other way, too. If aD (or anyone for that matter) takes a piece of GPL code and implements it in their system exactly or in fair copy then they have violated the terms of the GPL and will be visited by black helicopters. So I don't think you really need to worry about it. Just talking about it isn't such a big deal, particularly if its been built somewhere else before. Try as they might, I don't think someone can really patent something like the idea of Bulletin Boards, or selling books on the internet. What would be a problem would be if you were to suggest some modules and you or others come and say, "Well, the way aD did it was ..." and that way was then incorporated directly into the system. That would be a rather obvious violation. The worry that the OpenACS community has is that there may be a gray area in there of something that has been implemented very similarly to the Java version, but not identical. If the person that wrote that code had looked at the aD stuff and aD decided to prosecute they could very well have a case and the OpenACS community would have a hard time defending itself for lack of funds. But the potentially more serious problem is what would happen if, God forbid, the ACS Java license exchanges hands and the inherited entity does not feel this "open source stuff" is in its best interest? By virtue of their inheriting the license, they can prosecute for violation of the aDPL. This is the true fear, not that aD has turned to the darkside. What can happen in the very worst case where something totally unexpected happens? I don't mean to suggest that anyone is going to hell or will be sold out, but this is a real fear for any business in the current climate. The suggestion the gatekeepers have made falls under the "better safe than sorry" argument. If no one developing for openacs looks at ACS Java, than no one need worry. So, your bigger worry, and the openacs community's, is that whatever your ideas are won't conflict with that of your past employer :) talli
First of all, remember that the ACS Tcl version is GPL'd, and our warnings to developers to isolate themselves from ACS Java 4.6 and later versions is to insulate our project from the ...

(I've been waiting for the right time to say this)

potentially viral effect of the ADPL on GPL'd code.

As far as your more general concerns regarding other parties patenting your, or our, ideas there's really no defense other than money. In the first place, money enough to patent those ideas you think are patentable (and as much as I detest software patents, having grown up and developed and sold innovative software back when there was no such thing available, this is the safest thing to do). If you patent your ideas yourself you're free to charge whatever you want in license fees, for instance zero dollars for GPL'd use and infinite dollars for other use.

Of course, there's that (damned) money issue to deal with.

The other course is to plunge forward, document what you do, and if someone nastily tries to patent not only the idea (patents really are, in theory at least, more precise than that) but your implementation sketch, rely on the courts to give you the satisfaction of shooting stuff down.

IMO eventually something like the FSF pledge to defend GPL issues will need to evolve to scuttle bogus wide-ranging patents, i.e. an independent source of funding and legal resources needs to evolve to tackle this horrible weapon against the use of commonly-known techniques in software (patents are supposed to apply only to true innovation, the Patent Office simply doesn't have the expertise to sift the chaff from the wheat today, which is why the patent issue is at a semi-crisis state).

Still, my private advice is to more or less ignore it regarding aD. They're not out to screw us over and the big-picture patent issue is one which none of us here (including aD) have enough money to buy a place at the table.

(if anyone here can tap such funds, please e-mail me privately, we can probably set you up with your own CVS tree to store your legal briefs :)

Hello Talli and Don,

I think you both accurately state the general status of legal aspects of development:

1. ideas are not patentable, ways of solving problems are.

2. "black helicopters" don't make strong legal argument (but FSF does have its agents)

3. Portions of vertical applications (with strong horizontal foundations) are patentable (related to the modules in question).

4. Unlimited monetary resources to buy legal representation tends to win patent cases.

5. Although there is confidence in the current aD administration, the environment can change.

6. Stopping access to aD development code increases legal standing.

Talli, previous clients would welcome any assistance toward the common goal. One client resembled a scenario not too much different than "the little mouse that roared", so it's the competition (multinational corporations with big pockets) that might seek to take advantage of any anti-competition loopholes (a historical pattern of behavior).

Don, your succinctly stated description of the "viral affect of the ADPL on the GPL" highlights the underlying process of my concerns, because:

Even though OpenACS developers voluntarily isolate themselves from ACS Java 4.6+, aD developers have *no* incentive to isolate themselves from OpenACS. In fact, with rapid development and resources, the situation could easily look like a slow build of a TCL version replicates the methodology of the Java one --even though the TCL one starts first. As I stated before, no idea is original. Certainly academic resources could dig up a historical figure that operated on a similar set of solutions --precluding any dated documation tracked during development. As you stated, patents are based on false assumptions. Anyway, one clearly has a stronger legal posture when one has a completed project, and the other party is still building.

I contacted my inner Buddha (supersymmetry oneness) about this; and His reply echoed "Don't worry, be happy. I'll help you."  Still, my mind could not let go of this, because I feel responsible to clients and their projects (especially when technology development is aligned with GPL). So I went for a night walk around the block to get some perspective and fresh air.  A statuesque figure greeted me at the midpoint of the walk; The flashlight revealed a brown-spotted black cat that immediately demanded my attention --apparently an agent with a message:

"If you are still concerned, use your own sandbox."

Hmm. Good idea! I'll hold back on posting the project until it is in the beta stage (with documentation). This approach prevents the dilemma.

Thanks much for your clarification and help.

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Posted by Ben Adida on
I'm worried that this thread will confuse a few of the issues here.
Patents and code licenses are very different! If you are a
corporation thinking about these issues, you need to consult a
lawyer who knows these issues well.

In general, OpenACS doesn't have a contract with ArsDigita other
than the implied code licenses that govern the
ArsDigita-copyrighted code we use. The only time ArsDigita
could take issue with us is if we violated the GPL on ACS prior to
4.6, or violated the ADPL on 4.6 and later. Since we have no
intention of using or even viewing v4.6 and later, we don't need to
worry about the latter. And we have no intention of ever violating
the GPL.

Now, with regards to patents: no matter what you do in software,
you're bound to get screwed by patents if you start making
serious money. That's because every stupid, obvious process
that exists has been patented in some way (that "one-click" idea
comes to mind). This has *nothing* to do with ArsDigita,
*nothing* to do with the ADPL. The license doesn't matter one
iota.

Finally, if you reveal your process to the public in a way that is
dated in a verifiable way, you are effectively creating "prior art,"
which means that no one else can patent that process (and even
you've got only one year to do it here in the US). But does that
matter? If a big company has enough money, they will use your
ideas and, if you try to sue them, they will come back with their
list of 1200 patents they own that you're infringing.

At the end of the day, you should assume that no idea you have
is unique, and you should "reveal" it when involving others fits
within your strategy.

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Posted by Torben Brosten on
Ben, you're right to clarify. Patents and code licenses are very different.  I initially used "patent" loosely to imply protection of intellectual property, which includes licenses (regardless of patent, copyright, research data etc.)

I agree that "The license doesn't matter one iota," for the reasons you state; Also, the relationship (between OpenACS and aD) is hopefully "more positive" than any legal paper.

wonderings of an old player...

Now is the time to verbalize my own curiosity about the loyalty of aD to stand by its GPL code in the context of OpenACS, and in the light of any patent infringement challenges that "might" result from "big money" trying to undermine the project. Would aD (and oACS) attempt to protect its authorship of the GPL software? I would hope so.

By looking at the actions by aD over the last year (changes in content of their website), I can't help but feel a little cautious; It seems like aD is jettisoning the whole idealized concept of GPL and ethical use of intellectual resources in pursuit of funds.  [Is money worth that much?]  I feel that the oACS gatekeepers might have the "boiled lobster syndrome", where the changes are happening so gradually that the lobster (ie oACS) doesn't realize it is being cooked until too late (the GPL/oACS is no longer supported by aD --even as authors of the GPL software). It's natural to be concerned because the gatekeepers [your] involvement in development (and the perception of internet-time moving at a faster rate than world time) may make it difficult to experience the external perception I see. Still, you have a direct relationship with aD and therefore "inside information". So, I trust your judgement on this --"not to worry." We could discuss what happens if aD no longer protects its GPL software as the author, but again, I trust they will protect their resources (on a case by case basis) --let's not go there.

public disclosure of prior art...

By the way, the process has been revealed in the public (not via the web) since about 1992, so I feel protected to a certain extent regarding "prior art."

In conclusion...

You've convinced me: "At the end of the day... you should 'reveal' it when involving others fits within your strategy."

When the gatekeepers get bored (ie after the completion of the port of ACS4.x), I'll post the suggestion --complete with system outline, recommended requirements, methodologies, and standards.  I guess that means I need to learn CVS et al real fast --no bypassing CVS by using my own sandbox!

cheers to GPL and cooperative action (this is the evangelist forum, right?)

Remember, when it comes to "prior art" arguments it boils down to whether
or not you have the financial resources to pursue a legal case, and whether or not any judge eventually hearing the case is in tune enough with technology to make a sound ruling.  "One-click" is so clearly obvious that it shouldn't, logically, pass muster with the patent office,
much worse survive in court, yet it has done both.

So ... why worry about things you can't control?

More interesting is your asking whether or not aD would fight to protect the Tcl version of the ACS if someone violated the GPL under which it is licensed.  Good question.
They have no direct financial incentive at the moment to do so, since they're abandoning the code base.

And OpenACS isn't a legal entity so certainly couldn't step forward to protect our own GPL'd additions to the code base.  Individuals would have to do so and as individuals we don't tend to be wealthy folks able to sustain a long, expensive court battle.

On the other hand, the FSF will step forward to defend the GPL license.
They are willing to do so precisely because they understand that many GPL'd projects are run by small groups of people who don't have the resources to defend the license.

In practice this is an untested approach.

But, again, why worry about what you can't control?  The siutation here
is no different than in countless other GPL'd projects.  Any GPL'd piece of code risks being hijacked and bundled for release in a proprietary way that violates the GPL.

  BSD folks argue that this leaves them with one less thing to worry about in life, because BSD'd software can legally be hijacked in this way...

Of course, the problem of hijacking isn't unique to open source software, either.  Proprietary libraries distributed in binary form can be hijacked just as easily if they have published API's.

And there's the outright piracy problem with proprietary software.  The financial motive to steal proprietary software is certainly much stronger
than the motive to hijack something that's already free.