Archive for intellectual property

Open Usage Commons is Just Wrong

July 10, 2020 Google, intellectual property, software trends, Software vendors Comments Off on Open Usage Commons is Just Wrong

I have to admit, that’s I’ve been brooding about this for two days now. Yesterday, July 9, 2020, Google announced the creation of the Open Usage Commons organization. On the surface, the OUC (pronounced “uc”? Ooc?) seems like just another one of the many not-for-profits formed to assist an open source community to develop and license software created by many companies together. They announced three projects would be part of OUC, Istio, Angular, and Gerrit. So far pretty normal for moving open core to real open source with independent governance.

Except it’s not. What seemed redundant at best is much more nefarious. The OUC (oh you cee? It’s a bad name…) only holds the trademarks of these open source projects. The copyrights and potentially patents are held elsewhere. It’s like owning a car but someone else owns the paint. Why would anyone want this?

To get to why this is so odd, we need to talk about intellectual property. There are three main types of intellectual property (IP) in the US system, trademarks, copyrights, and patents. All three are meant to protect a different form of intellectual output or ‘art”. A software product may be protected by a patent but it’s not that common. Patents need to be unique inventions and are typically physical products. There is a type of patent, a process patent, that applies to some software, but it is not how the majority of software is protected. This has been an ongoing issue with software for 30+ years. Patents don’t’ really work for software.

Copyrights protect artistic works such as art and writing. Software is typically protected by copyrights since it is an ephemeral “written” work. The ability to use a copyrighted work, including open source software, is controlled by licenses. In fact, what differentiates open source from proprietary software is the license, which grants the right to use and modify the software for free as long as you follow the license. A typical component of an open source license is the requirement to submit changes made to the software to the community to see if they can benefit everyone.

Finally, trademark protections are for the outward identification of an entity or product within a domain. Logos, names, graphics that identify something, these are trademarks. This blog is protected by copyright, as a written work, and the site name and logos via trademarks.

Software as a product is protected primarily by copyrights and trademarks. The code is protected by copyright and the name and accompanying identifying graphics via trademarks.

Now this is where things get weird. The OUC (Oh oo cay? I really hate the name…) exists to manage only the trademarks of open source projects. This means that the copyrights for Istio, Gerrit, and Angular are held by some other organization or company, and the trademarks by OUC (I’ve run out of jokes about the name.) Separating the IP into multiple organizations, and hence multiple licenses, seems confusing at best. This is like financial derivatives where mortgage interest and principle are stripped apart from each other and sold separately. We remember how well that worked in the 2000s.

At worst, this is a way to control who can actually use open source software without actually saying so publicly. You may have the right to use and productize software such as Istio, as Red Hat, Rancher, and others have done, but not be given the rights to use the name without a second license. That has two effects. First it requires separate licenses and hence negotiations for different parts of the total IP. The open source license will give the licensee rights to the copyright but the OUC can refuse the trademark license.  Second, it creates a situation where license may not always agree and could hinder the ability to market the software. You could then have your open source ducks in a row but be stuck in negotiations with OUG. While all of that is possible, that’s not even the worst part. What’s worse is that it allows Google through the OUC to claim independent governance for the projects when it’s really only the trademarks.

Istio is a prime example of this problem. The cloud native community has, for some time, been expecting that the Istio software would be given to the CNCF, just like Kubernetes.  The fact that this hasn’t happened yet has been a drag on Istio’s adoption and called into question it’s future viability. Needless to say, the cloud native community is perplexed and annoyed by this move. CNCF is very much capable of managing both the copyrights and trademarks of Istio, along with the project itself. Even if the copyrights for Istio eventually end up with the CNCF or Apache Software Foundation or some other established foundation, the OUG will have the trademarks. That means two licenses for anyone trying to productize Istio, something CNCF can accomplish with one. At best, it’s needless complexity.

So, here’s my advice to the communities that have been working on these projects. If at all possible, immediately fork the software into another project and join an established not-for-profit. If that’s not possible then abandon it. Vendors will have to create new distributions. While that’s lousy, it’s worse to be a part of something as suspicious and with such a monumentally bad name as OUC. You know, maybe the name is code for Owned Universally by Corporations.

An Open Letter to Prince or Whatever You Are Called These Days

April 11, 2016 analytics, intellectual property, social, social media, software trends One comment

Dear Prince, Prince’s Publisher, and Prince’s Management,

Are you daft? Not as in Daft Punk – who is quite popular– but meaning “have you lost your mind?”. All of your music has been removed from Spotify and a bunch of other streaming music and video sites. And not just all of the music you recorded but anything you wrote and someone else recorded. This includes the Cindy Lauper recording “When You Were Mine” from her classic “She’s so Unusual” and the iconic Sinead O’Conner song “Nothing Compares 2 U.” Classic songs form a classic age. Great music just waiting for a new generation to discover it – and put money in your pocket.

Instead you and your publisher prefer to live in the musical equivalent of a cave. It’s dark, lonely, and you can’t see what’s happening in the real world. And in the real world services such as Spotify not only play the songs you want to hear but recommend songs that you may ever have heard of before. You know, like music written by someone in a dank cave. Let’s be honest, at this point in your career any connection you can make to young people, any time they can find your music and enjoy it, is a plus. You’re an old guy like me. If anyone in the 15 to 20 demographic runs across your music and thinks it’s pretty cool, you are way ahead. It’s certainly better than fading into obscurity or, worse, embarking on those nostalgia tours with Flock of Seagulls and Adam Ant. And if you doubt your obscurity, you pulled your music from streaming music services in July and I just realized it and I’m from your era. That’s not a good sign.

How do you think young people will find your music? From the music press? Almost no one under 40 reads music magazines, especially Rolling Stone. Even if young people are reading the music press (which will be online by the way), the music press isn’t writing about you. At least not since you changed your name back from an unpronounceable symbol that caused everyone to refer to you as “the artists formerly known as Prince.” I’m pretty sure that’s not the statement you were going for. How else? MTV? Ha! They haven’t been relevant from a music perspective in 25 years – at least! You won’t show up even on VH-1 since they ended the “Behind the Music” series. So, unless you plan to get drunk and plow your car into a crowd with a Kardashian in the passenger seat, I doubt any of these outlets will care enough to mention you.

So, let me help you out here. Young people get their music in one of two ways: through YouTube, and similar video services, and streaming music outlets such as Spotify and Pandora. In other words, the very outlets you eschew. They like to go to concerts which means we’re back to the nostalgia tour and the hope that someone in their 50s will drag their college age kids along, most likely against their will. Seriously, the technology of music delivery changed 15 years ago. No one under 45 buys CDs anymore and even digital downloads are on the way out. Just wake up and smell the bits and bytes.

And do you know why this is? Do you have a clue as to why people pay for streaming services? Three reasons. First off, many don’t. Music listeners who are not real serious about music or lack a real job don’t mind a couple of commercials if they can binge on Best Coast. Second, they can binge on Best Coast. Or R.E.M., Alabama Shakes, CHVRCHES, Stray Cats, Bryan Ferry, or even The Three O’Clock for cryin’ out loud. Except for Prince. That’s off limits.

Finally, it’s the recommendations. Whether recommendations come from friends or they come from predictive analytics, people like a good suggestion. And this is where you really miss out. Those social and automated recommendations help explain why we see teenagers and college students listening to music from the 80’s, 90’s, 70’s, or 60’s. Not the 50’s. They haven’t discovered that decade’s music yet but it’s coming.

Let me outline how this works. Someone hears a song by a band through a recommendation or a friends sends them a link to a video on Vimeo. They tell their friends about it who then go on a streaming music service to listen to it. The friends love the song too! Suddenly, they receive recommendations that basically say “if you like this band, then you might like these other bands”. On Spotify, you get a weekly playlist of recommended songs based on what you’ve been listening too. And in among those recommendations might just be one for Prince. Except that you and your publisher won’t allow these young people to discover your music that way.

See, streaming music and video services are all about reducing friction. Friction, in this context, is conceptually like friction in Physics. It’s an impediment – something that holds us back. A force against forward motion. In this case, streaming music makes it affordable to try out artists you never would have listened to, including those no longer on the radio (not that young people are listening to the radio). They make it easy to discover new artists that would have taken more effort to find than most people have patience for. In a nutshell, they reduce the impediments i.e. friction to finding and enjoying music, perhaps even your music. By removing yourself from streaming music services, you add to the friction, ensuring irrelevance to modern audiences. That is unless their parents are huge Prince fans and positively insist on playing old vinyl records for their children morning, noon, and night. Their kids will hear you but resent you so that doesn’t seem like a strategy you should hang your hat on.

Perhaps your music cave is full of money and you don’t care about royalties. Perhaps, but your cave is not full of relevance. As an artist, don’t you want to be heard? Doesn’t it bother you that there is entire generation of young people just waiting to discover your music, just waiting to hear you party like’s it’s 1999 (back in 1982), but who won’t because you and you’re publishing company are – what? Looking for more royalties? Please, get over yourself. Your heyday was 30 plus years ago. It’s one thing when a current megastar like Taylor Swift postures. It’s still not smart but she at least doesn’t need these services to remain relevant and, sadly, you do. It’s also why Bruce Springsteen continues to attract young audience members – he makes his music accessible to his fans and their friends.

So as someone who remembers your peak days somewhat fondly, I implore you, for your own sake stop the madness (but not Madness who is on Spotify and YouTube)! Allow 50-something women to send their college age daughters links to “Purple Rain”. Leverage all the predictive analytics, automated recommendation engines, and ‘bots to introduce your music to a whole new generation. Or, sit in your money filled music cave, fade further into obscurity, and let the Blake Babies become the avatar of music for the current generation.

And may God have mercy on our souls.

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