Countdown - Open Source Style

I am a big fan of top 10 lists... particularly humorous ones a la David Letterman. While I can't claim that any of the top 10 list below is humorous, it does paint an interesting picture on the status of open source in the top 10 companies (by market cap) in the Software Application Industry (Technology Sector) of the stock market.

These 10 companies represent over 96% of the market capitalization in the Software Application category. At the end of each entry, I give the company a (purely subjective) grade reflective of its efforts, commitment and contributions to the open source community.

So, here we go...

10. Sybase ($2.7B) - Database Management, Information Management and Business Intelligence Software. Sybase appears to have made at least a minimal effort to embrace open source. It even has an OSI approved license (the Sybase Open Watcom Public License). More important is how many of Sybase's competitors have serious open source credentials ... MySQL/Sun, Pentaho, JasperSoft, GreenPlum. Grade - D.

9. Nuance Communications ($4.1B) - Speech and Imaging Solutions Software. A search for "open source" on the company website results in 0 hits. Enough said. Unfortunately, there are no open source options. Grade - F.

8. Red Hat ($4.2B) - Linux and JBoss Provider. Red Hat, as we all know, is one of the premiere examples of open source software industry success. Enough said. Other Linux providers exist, as do other OS providers, but Red Hat is the go-to open source vendor. Grade - A.

7. BMC Software ($7B) - Enterprise Management Including Application & Database Management. As with Nuance, a search for "open source" on the company website results in 0 hits. However, BMC has a developer network with various, small-scale open source projects. Grade - D.

6. Intuit ($9B) - Personal Finance, Small Business and Tax Software. Intuit does not appear to have any significant involvement in open source and this probably is not the type of software that has attracted a developer community to create open source alternatives. Grade - F.

5. CA ($12.3B) - IT Management Software. To my surprise, this 30+ year old company has embraced open source in a significant way. For example, CA has supported the open source industry's patent pledge for several of its patents. Grade - C.

4. Adobe Systems ($21.6B) - Creative, Knowledge Worker and Enterprise Software Applications. Facing the commoditization of it biggest revenue generating applications (Photoshop and Acrobat), Adobe has taken the initial steps it needs to diversify its business into open source in a significant way. Grade - C+.

3. SAP. ($60.1B) - Business Operations. SAP has dabbled in the open source world, partnering with MySQL on database technology. Overall, however, SAP hasn't made many significant contributions to the open source community. Grade - D.

2. Oracle ($111B). Database, Middleware and Enterprise Management. Oracle might be described as the Jeckyll and Hyde of open source. While it distributes several open source applications (such as Sleepycat and Innobase), it also actively challenges other open source providers (such as with Unbreakable Linux) and would likely acquire competing open source companies to eliminate a business model that threatens its own. This duality makes it hard to settle on a grade. Grade - C-.

... drum roll ...

1. Microsoft ($277B). It's no surprise that Microsoft is in the number one spot (even on Letterman the #1 is always anticlimactic). In spite of making substantial contributions of code as open source, Microsoft is the big bad wolf of open source for good reason... among other things, it has a very proprietary stance on patent licensing for open source projects. Grade - D.

Some other companies that didn't make the list due to technicalities are:

• Google ($178B) - would be the clear number 2 if it were in the "Software Application" category. Google would receive a B for OS Effort (knocked down from A because of its deceptively not open Android platform and other calculating open source strategies).
• Sun Microsystems ($10.2) - would be at number 6 if it were in the "Software Application" category (though its software business is probably valued at closer to $4B, which would drop it a few spots on the list). Sun would definitely receive an A for OS Effort as the largest open source software provider.
• Still other companies like HP and IBM have been long-time contributors to the open source movement, but are not reflected here.

I find it very interesting to note that of these top 10, only 1 got a grade better than C. In addition, one estimate of the total value of the open source industry ($60B) would place the entire industry at only number 3 on the list (though without an objective market cap value, it's hard to draw many conclusions from this).

On the other hand, if we add Sun and Google (two of the top open source contributors) we come closer to a critical mass of open source presence on the list, and lest we forget that numerous open source companies with no market cap at all (because they aren't listed on a stock index) are providing strong, competitive alternatives to the software and solutions provided by the companies on the list.

What can we conclude from all this? First and foremost, we can safely conclude that I am not a mathematician, statistician, or financial analyst, as evidenced by my loose use of numbers and grading to make my point.

More important, even a pessimist would have to say that the presence of a company like Red Hat on the list means open source is making significant inroads into the traditional software industry. The amount of innovation and competition presented by companies not yet public or too small to make the list yet indicates that the trend is strongly pointing towards greater adoption of open source. It might be only a handful of years before all of the top 10 companies on this list receive A's and B's.

Patents: More Than Meets the Open Source Eye

Copyrights and trademarks are important assets in the software industry and their use is well-accepted by the open source community. By contrast, few software issues are more controversial than patents, and the open source community has been particularly vocal in advocating for the elimination of software from the scope of patentability. Though it would be easy for an open source company to translate the community's views into a belief that patents are not relevant to its business, such an approach would ignore the reality of patents in the software industry and place the company at great risk. A better approach is to create a patent policy that acknowledges the status of patents in the industry, implements appropriate measures to incorporate patents into business strategy, and clearly explains a company's position on software patents to the community.

As with copyrights and trademarks, patents can be tools for differentiation. Proprietary companies often pursue differentiation by collecting patents (either by harvesting them internally, purchasing them, or licensing them). These companies often choose to wield their patents offensively, affirmatively license them for a fee, and/or license them for free (or at least promise not to assert them). This is a core element of their business strategy. Community reaction to these policies usually has little impact on proprietary companies.

By contrast, open source companies often do not include patents as a core element of their business strategy, influenced in large part by their communities.The open source community (and many members of the proprietary "community" for that matter) objects to software patents on philosophical grounds, and also for the practical reason that patent threaten the very survival of popular and innovative open source projects and companies. In fact, many members of the community will not consider a company to be “open source” if it opens it copyrighted materials while claiming patents on the same technology (even if only for defensive purposes). As a result, the traditional approach for open source companies has been to establish a policy against software patents that might also include associated lobbying efforts, or to allow use of patents only for defensive purposes.

Notwithstanding the community bias against patents, open source companies should consider the benefits of differentiation that patents can offer. Once a company determines that patents are critical to its business strategy, it must decide whether to use those patents offensively and/or defensively, grant free patent licenses or covenants not to sue, or submit patents to shared pools. In fact, at least one purported open source company is experimenting with a business model under which it withholds patent rights for commercial use unless a customer purchases a license (though it appears the community will react negatively if the proposed business model becomes reality). Even when an open source company decides not to collect patents in the ordinary course of business, it should still consider whether to collect patents (or licenses) strategically on a case-by-case basis for defensive purposes. Use of patents in these ways might pass community muster if explained properly.

Finally, open source companies should be aware that their actions might define their patent policies without intending to do so. For example, adopting GPLv3, and the patent licensing obligations therein, as the licensing vehicle for an open source project implies that patented materials should not be included in community software unless there is no threat they will be enforced. While use of the GPLv3 is accepted by the community, open source companies should ensure that the patent provisions therein are consistent with its patent policies and objectives before adopting the license.

On first glance, the expense of obtaining patents, and difficulty in enforcing, protecting and exploiting them, as well as the community bias against software patents indicates that collecting patents is of little value to open source companies. However, patents can be valuable tools for differentiation, which might justify the effort and expense. In any case, there are other compelling reasons to think carefully about a patent policy and strategy. Regardless of what policy or strategy an open source company decides upon, it must always recognize the reality of patents in the software industry and consider what the community will tolerate.

In my next blog posting, we will leave the the complexity and controversy of patents behind for a discussion of trade secrets, and we will ask, "how 'open' should open be?"

Copyrights: Alive and Kicking in Open Source

As mentioned in my previous post, this is the first in a series of posts about the role of intellectual property rights in open source businesses. Copyrights and copyright ownership are a significant part of all open source businesses and are as relevant today as ever before.

In a world where the most popular open source license (the GNU Public License) embodies the philosophy of "copyleft," it would be easy for an open source company to ignore the value of copyrights and copyright ownership. It is even easier to ignore copyright ownership with the great success of a company like Red Hat whose business is built on a foundation of software with so many copyright owners that the concept of ownership becomes virtually irrelevant. In spite of this, open source companies must make copyrights and copyright ownership a top priority, and must implement business policies that protect and exploit copyrights as necessary to make their chosen open source business models effective.

Copyright ownership seems "old school". For decades, proprietary software companies have tightly controlled their copyrights in, and generated revenue by, granting limited scope usage rights to customers. The rise in popularity in open source business models in recent years has changed the way software companies use copyrights and the rights they grant to customers. Companies that license their software as open source, by definition, can't prevent others from exploiting their copyrights to make a better product, or by setting up a consulting or service business based on the same software. Differentiation is the only way an open source company can survive in this environment, and copyright ownership is a critical element of differentiation for any open source business models.

Most open source business models roughly fall into two categories: dual-license or service-oriented. Open source companies that retain ownership of copyrights (either by creating code themselves or through an assignment of rights from contributors) can implement a dual licensing model. While the purists in the open source world might see the use of closed source value-add components as a contradiction to the open source values, realists recognize that the value and quality of open source software cannot be sustained unless a revenue stream accompanies it. The dual license model gives open source companies that own copyrights incredible flexibility. Not only can they license their software to companies that would not typically entertain use of open source software by providing a closed source license, but they can also develop add-on components that retain the open source nature of the core software while generating value that was not previously there.

Open source companies that implement a service-oriented business model can also benefit from copyright ownership and differentiation. These companies can extend the value they provide beyond their services by creating their own add-on components for which they own the copyrights. These components can be licensed as closed source, or under a dual-license model, which gives an open source company a new level of flexibility.

Open source companies with all levels of revenue can enjoy the good news that copyrights are generally easy to protect and exploit. They are created spontaneously upon creation of copyrighted work and can be exploited through basic license agreements or through transfer of ownership. Registration of copyrighted material, which enhances a company's ability to enforce copyright infringement claims, takes very little time or money. Even in cases where copyright ownership is not deemed important as a primary business strategy, open source companies should pursue ownership and protection of copyrights to the greatest degree that makes sense for the chosen business model to preserve flexibility and enable differentiation.

In my next post, we will look into possibly the most important intellectual property right of all for open source companies: trademarks.

Flying the Jolly Roger

I was recently talking with one of my software developer colleagues about intellectual property rights. After explaining that proper protection of IP rights is critical to sustaining a software business, my colleague responded, “Arrrrrr, shiver me timbers!” Needless to say, I was perplexed.

After a little digging, I found out that he was referring to Rick Falvinge’s Pirate Party in Sweden, a single purpose political party. These Pirates don’t want to pillage and plunder (at least not in the traditional sense). Instead, they want to reform IP and privacy laws to prevent corporate entities from exploiting them at the expense of personal privacy.

As a lawyer, the concept of property rights, particularly intellectual property rights, is central to my livelihood. That’s why I was skeptical about, maybe even threatened by, the Pirate Party’s platforms at first. After having several more pirate-talk exchanges with my colleague, I had the chance to see Mr. Falvinge at the MySQL User Conference last week. Both my colleague and Mr. Falvinge convinced me that the positions of the Pirate Party are worth pursuing … the party has real credibility. On top of that, I was greatly impressed by Mr. Falvinge's lofty goals:

• Win a seat in the Swedish Parliament with 4% of the vote.
• Act as the deciding vote in electing the Swedish Prime Minister, with a commitment that the Pirate platform would be a central objective.
• Use Sweden’s EU membership as a protective measure against trade sanctions (based on implementation of IP reforms) from the US and other trading partners.
• Achieve world domination! (OK, I added this one on my own, but these Pirates seem to think BIG).

The Pirate Party platform has some reasonable elements, but many push the discussion too far. For example, the Pirates call for limits on the term of copyright protection, but suggest an unreasonably short term of 5 years. In any case, the dialogue that results from this political movement is worthwhile and has the potential to impact our day to day lives at least as much as many of the policies outlined by the candidates in this year's US Presidential elections.

For those of you not familiar with the Pirate Party, I urge you to check into it if for no other reason than the novelty. The party has also been replicated in many countries, including the United States. If you have dismissed the Pirate Party as “fringe” or not worthy of serious attention, please take another look. You might find yourself with an eye patch and parrot recruiting your own crew to sail the seven seas, looking to loot the coffers of the large corporate sailing ships that abuse the copyright laws at the expense of individuals.