Since we now only need nine more signatures in the next two days to enact this Written Declaration (which is not extreme – it makes very reasonable statements about the European Parliament’s attitude towards ACTA), you can make a real difference by calling your MEP or if you prefer using WriteToThem, and asking them to sign the Declaration so that the attempt at an end-run round democracy is rejected by the Parliament. You might want to say something like:

As a constituent I am worried that the Anti-Counterfeiting Trade Agreement that’s being secretly negotiated internationally may well use a treaty to impose terms that have neither been discussed nor agreed by you in the European Parliament. Please will you sign Written Declaration 12/2010 right away (before it expires on Wednesday night) so that the Commission knows that the Parliament will not accept a fait accomplis?

The following had NOT signed at 11pm UK time on Monday:

• William (The Earl of) DARTMOUTH
• John Stuart AGNEW
• Marta ANDREASEN
• Richard ASHWORTH
• Gerard BATTEN
• Godfrey BLOOM
• Sharon BOWLES
• Philip BRADBOURN
• John BUFTON
• Martin CALLANAN
• David CAMPBELL BANNERMAN
• Michael CASHMAN
• Giles CHICHESTER
• Derek Roland CLARK
• Trevor COLMAN
• Nirj DEVA
• Diane DODDS
• James ELLES
• Nigel FARAGE
• Vicky FORD
• Ashley FOX
• Julie GIRLING
• Daniel HANNAN
• Mary HONEYBALL
• Richard HOWITT
• Stephen HUGHES
• Syed KAMALL
• Sajjad KARIM
• Timothy KIRKHOPE
• Elizabeth LYNNE
• David MARTIN
• Linda McAVAN
• Arlene McCARTHY
• Emma McCLARKIN
• Claude MORAES
• Mike NATTRASS
• James NICHOLSON
• Paul NUTTALL
• Brian SIMPSON
• Peter SKINNER
• Struan STEVENSON
• Catherine STIHLER
• Kay SWINBURNE
• Charles TANNOCK
• Geoffrey VAN ORDEN
• Derek VAUGHAN
• Glenis WILLMOTT
• Marina YANNAKOUDAKIS

If you can’t remember who your MEPs are, open WriteToThem in a new tab or window, enter your postcode and check down the list. If you’re in Europe but outside the UK, the list on Quadrature can be sorted by country for you to check.

Also:

• Welcome Apple, seriously
  It appears that Apple are happy to play open but Facebook aren’t quite so keen to join in. That’s the deal with “open” – it cuts both ways.
• Henry Story and WebID
  Another member of the Sun diaspora, with a very worthwhile idea.

Image via Wikipedia

Next week JavaZone, the conference that brought you Lady Java and Java Forever will be held in Norway. To celebrate the opening of the new ForgeRock Norway office, we’ve arranged for a party just before the conference starts, on Tuesday evening. If you are in Oslo and would like to attend, please send an RSVP to the address on the web site.

As part of that, James Gosling and I will be “beaming in” via webcast to give short talks and maybe even answer a few questions. If you’d like to join the webcast (using DimDim), please register on our website.

Related Articles

• Gosling: Oracle Could Still Live up to 2007 Java Pledge (pcworld.com)
• Java daddy says Sun engineers ran ‘goofiest’ patent contest (go.theregister.com)
• Java founder Gosling launches T-shirt campaign for free Java (infoworld.com)
• Lady Java Video Marks Exact Point Where Geek Culture Jumped The Shark (techcrunch.com)

At first sight, this sounds great. Headlines have popped up all over the place which might lead one to believe that everything is now fine in the area of video streaming on the internet and we can all proceed without fear of having video taxed. But I’d suggest leaving the champagne corked for now.

Unpacking The News

The statement actually takes a lot of unpacking, probably intentionally so. H.264 is the widely-used “MP4” video format created many years ago by the Motion Picture Experts Group, MPEG. Those “experts” were mostly associated with various corporations and research labs, and the international standard they created was heavily encumbered with patents.

Realising that no-one much would use the standard if each user had to go negotiate patent licensing terms with a large number of separate parties, the patent-holders wisely decided to get together outside the scope of MPEG and create the “MPEG Licensing Authority”, MPEG-LA.

Despite the name, MPEG-LA is nothing to do with the standards group itself. It’s a for-profit company devoted to making the patent problem worse in the name of making it “easier to handle” by creating patent pools for all sorts of other technology areas, beyond the media formats they already police. Go looking for the exact terms under which they are offering “free use” in this case and you’ll find they are not keen for you to know. The best available are summaries that are sketchy about the exact definitions of terms.

They had indeed in February decided to waive licensing charges for what they describe as “where remuneration is from other sources” than direct payment by the viewer to the broadcaster. Their original commitment was to leave such uses untaxed until 2015 and thenceforth to tax at a rate no greater than on-demand internet TV viewing. Their announcement last week commits to never charge under these circumstances.

Chain Of Taxes

Their use of language helps us understand what’s really happening, though. For H.264 video to reach your browser, there is a chain of events that has to happen, and MPEG-LA is taxing every one of them apart from, now, the last.

First, the H.264-format video needs to be created – but that isn’t free under this move. Then it needs to be served up for streaming – but that isn’t free under this move. There then needs to be support for decoding it in your browser – but adding that isn’t free under this move. Finally it needs to be displayed on your screen.

The only part of this sequence being left untaxed is the final one. Importantly, they are not offering to leave the addition of support for H.264 decoding in your browser untaxed. In particular, this means the Mozilla Foundation would have to pay to include the technology in Firefox.

If they could do that. But they would not be able to do so, since the software they create is open source and thus needs to be able to be freely used by others, as a whole or as a kit of parts, without any restrictions. A license bought from MPEG-LA would not be “sublicensable”, meaning they could not gain the right for any arbitrary open source community member to do the same as Mozilla was allowed with H.264. Consequently they are unable to benefit in any way from this apparently generous action by MPEG-LA.

Why Now?

Why are MPEG-LA taking this action now? They wouldn’t say clearly when they were asked, so we’re left to guess. It seems likely that it’s an action induced by Google’s WebM CODEC. At a minimum, MPEG-LA owes to its members a duty to maintain the commercial competitiveness of H.264 over WebM.

But there may be more to it than that. When WebM was announced, MPEG-LA made predatory noises and tried their best to instill fear, uncertainty and doubt in the market through veiled threats of patent litigation against Google and WebM. It may be they are getting ready to launch that attack, seeing this as the ideal moment for the opening of a third front of patent litigation against Google after Oracle and Paul Allen have started the war.

Whether or not that “Axis” forms, the news is nowhere near as good as other commentators would have us believe. The future of the web and of web video depends on open source software, and H.264 remains unusable in open source because of patent threats. MPEG-LA’s apparently magnanimous gesture offers as little to open source as their original tactical move.

Given the tendency for commentators to stick to directly-causal explanations, they seem to be getting away with it despite the fact it really changes nothing with respect to modern adoption of H.264. We should not be affording them so much credit for it.

[First published on ComputerWorldUK]

Related Articles

• MPEG LA: H.264 Streaming Will Be Free Forever (nytimes.com)
• H.264 answers Google’s open codec with forever free license* (go.theregister.com)
• MPEG LA counters Google WebM with permanent royalty moratorium (arstechnica.com)
• Mozilla shrugs off ‘forever free’ H.264 codec (go.theregister.com)

The goal of the project’s initiators is to reduce the legal costs of analysing paperwork faced by companies contributing to open source projects. Initiated and sponsored by Canonical, meetings have already been held several times under the Chatham House Rule, including one recently during LinuxCon in Boston. The participants also number several people who are skeptical of the value of copyright aggregation, myself included. At the meeting I was asked to write about my skepticism; this article is the result. I’m by no means the first to tread this ground; you’ll also want to read the earlier article by Dave Neary, and the comprehensive article by Michael Meeks ends with a useful list of other articles.

What are “contributor agreements”, why do they exist, and are they a good thing?  The need often arises from the interaction with open source of certain approaches to business. They serve a need of those approaches, but they can come at a significant cost to the health of the project. If you’re starting a new project, it’s worth understanding the bigger picture before diving in with a practical guide on the assumption “everyone uses contributor agreements” because not everyone does. For good reasons.

Dual Licencing

One of the dimensions of the business of open source has been the dual-licensing business model. The name is a little confusing since there is (usually) only one open source licence used – the second arrangement is usually a proprietary license or contract exempting the customer from some of the terms of the open source licence. It can be better to describe this as “selling exceptions to the open source licence”, and it is commonly done in conjunction with the GNU General Public License (GPL) which has clauses some businesses regard as hard to accept.

Under this model, open source software is genuinely present, guaranteeing the freedoms of its users, but the business owning the copyright makes money by selling benefits such as the right to make derivatives under a different licence, commercial terms that offer additional guarantees and (most famously) anything-but-the-GPL as the licence under which the software is used. This last option means dual-licensing has often been associated with shady sales tactics along the lines of “it would be a shame if your business got infected with that evil GPL viral licence…”

Copyright Aggregation

In order to use this model, the business owning the copyright has to own the entire copyright to the software they are distributing. As a consequence, when any community member wants to add a modification or enhancement to the source code for the software, the owner demands that to do so they must also hand over their rights to the addition. To achieve this, the copyright owner makes signing of a legal document mandatory for any involvement in the community that involves co-development.

Usually called a “contributor agreement” (to the detriment of older arrangements that use that term for community participation agreements that don’t actually aggregate copyright), the document gives rights amounting to ownership of the copyright in the new work to the copyright aggregator. It may also include other clauses, such as a statement or originality (“this is my work and I didn’t plagiarise it”), a grant of patent rights and even an indemnity (“if you get sued you can blame me”). In most cases the author retains rights to their individual work in some form or receives a license back, but it’s only the aggregator who has ownership of the copyright to the whole system.

So What’s The Problem?

Open source can be defined as the co-development of software by a community of people who choose to align a fragment of their self-interest in order to do so. The commons in which they work contains software under an OSI-approved licence free from usage restrictions with guaranteed freedoms to use, study, modify and distribute it – “free software”. The community members each work at their own expense in order to achieve a shared outcome that benefits all, including themselves. When they create an enhancement, fix a defect, participate in a design, they are not “working for free” or “donating their work” so much as they are “participating in co-development”.

That favoured word “contributor” gives a clue to the problem copyright aggregation agreements cause. An open source community is an open, meritocratic oligarchy – ruled by an elite who gained leadership based on the merit of their participation and skills, open equally to anyone who does the same in the future. The presence of a “contributor agreement” that involves copyright aggregation may be a warning sign that the community using it has one member who is more equal than all the others.

Communities whose members are termed “contributors” rather than “members” or “participants” may well be unequal places where your interests are subsidiary to those of the copyright owner. They are often dominated by users and fans of the software rather than by co-developers, since the inequality makes it hard-to-impossible for a genuine co-developer to align any fragment of their interests on equal terms. Indeed, this inequality is seen by some dual-license proponents as one of the attractions of the model as they seek a community of enthusiasts and (hopefully) customers that they can exploit without competition.

Exceptions

There can be justifications for having copyright aggregation by and for a community. When the beneficiary of the aggregated copyright is the community itself (in the case of a community hosted by a non-profit Foundation), there are benefits available that may outweigh the disadvantages. These include giving the Foundation the legal right to enforce the copyright in certain jurisdictions, and the freedom to update the open source licence later. They may also include the granting of additional rights such as patent licences in the case where the open source licence does not adequately deal with patents, or to help in countries where copyright law is sufficiently different from US law that the US-centric concepts behind open source fail. Richard Fontana covered these well in his LinuxCon presentation.

Even with these benefits available, there are many communities that choose not to aggregate their copyrights – notably the Linux kernel, GNOME, Apache and Mozilla communities. The recent policy and guidelines on copyright assignment by the GNOME Foundations are especially worth reading. Having diverse copyright ownership leads to a deeper mutual trust and an assurance that the playing-field remains level. Insisting on copyright aggregation is one of the more certain ways a company can ensure the open source community it is seeding remains small and lacking co-developers. With the rise of “value add” business models such as Apache-based open core or service subscriptions, it is less necessary for the businesses involved to aggregate copyright.

Some Foundations that avoid aggregation (such as Mozilla) do have a document termed a contributor agreement but the purpose it serves might be better termed a “participant agreement” since it mainly addresses community norms and specifically avoids copyright aggregation. Indeed, there are some who suspect a motivation for using the term “contributor agreement” vaguely to describe agreements also aggregating copyright is a tactic screen the toxicity of copyright assignments from general view.

How To Flourish

It may well be advisable to have a participant agreement for your community, to ensure that everyone has the same understanding of and commitment to the project if they are sharing its evolution. But if you want your community to flourish, eschew aggregated copyrights, or vest them in a non-profit entity representative of and open to the community. In fact, avoid any institutional inequality and focused control. Communities should be open-by-rule.

In my experience,  attempting to retain control of a project you’re starting or hosting leads to mistrust, contention and a rules-based focus that diminishes your reputation. Relaxing control will lead to the community innovating and growing in ways you’ve not anticipated, as well as enhancing your reputation. As I’ve frequently said (although less frequently been heeded): trade control for influence, because in a meshed society control gets marginalised while influence delivers success.

[First published in ComputerWorldUK]