It was more than a month ago that I started my pilgrimage to Texas to prepare for and participate in a court case in East Texas, but it still seems like only yesterday. As Groklaw aptly reports, opposing counsel pressed not only the question of whether Red Hat and Novell infringed three patents originally issued to Xerox corporation (which later fell into the hands of a non-practicing entity), but argued before the jury that there was a fundamental conflict between property rights and open source software–a conflict they wanted the jury to resolve in their favor.

While I have been processing the events of the trial, playing and replaying lines of questioning over and over in my mind, I’ve barely been able to keep up with the extraordinary changes to both the competitive landscape and the competitive rules of the technology industry. Having escaped from one rabbit-hole, I appear to have fallen down another directly.

While I was defending my own respect for the law, as well as those of my employer, Red Hat, strident language from Apple CEO Steve Jobs in a letter to Hugo Roy about video codec patents put us all on notice that these laws, as currently constructed and enforced, threaten the most basic freedoms most of us take for granted:

All video codecs are covered by patents. A patent pool is being assembled to go after Theora and other “open source” codecs now. Unfortunately, just because something is open source, it doesn’t mean or guarantee that it doesn’t infringe on others patents. An open standard is different from being royalty free or open source.

Reading the above, it is not clear whether Apple is planning to be a patent aggressor against open source, or if they are merely snitching on the plans of other patent aggressors. If the former, then they become an enemy of open source. If the latter, will they condone such aggressive behavior, or will they offer assistance to fight against such aggression? If they offer assistance, we should accept, but if they condone it, they are no friends at all. These are the only three potential interpretations I can make of the first two sentences.

Much more troubling is the last sentence, which clearly contradicts what the OSI has been saying about open standards for the past five years. Namely: an “open standard” must not prohibit conforming implementations in open source software. More specifically:

To comply with the Open Standards Requirement, an “open standard” must satisfy the following criteria. If an “open standard” does not meet these criteria, it will be discriminating against open source developers.

1. No Intentional Secrets: The standard MUST NOT withhold any detail necessary for interoperable implementation. As flaws are inevitable, the standard MUST define a process for fixing flaws identified during implementation and interoperability testing and to incorporate said changes into a revised version or superseding version of the standard to be released under terms that do not violate the OSR.
2. Availability: The standard MUST be freely and publicly available (e.g., from a stable web site) under royalty-free terms at reasonable and non-discriminatory cost.
3. Patents: All patents essential to implementation of the standard MUST:
   • be licensed under royalty-free terms for unrestricted use, or
   • be covered by a promise of non-assertion when practiced by open source software
4. No Agreements: There MUST NOT be any requirement for execution of a license agreement, NDA, grant, click-through, or any other form of paperwork to deploy conforming implementations of the standard.
5. No OSR-Incompatible Dependencies: Implementation of the standard MUST NOT require any other technology that fails to meet the criteria of this Requirement.

This note from Apple was like a rabid dog barking at the pound, for it seemed to set off a flurry of patent-rattling from all corners, with Microsoft quickly claiming that Salesforce.com infringed nine of their patents, Nokia claiming that Apple infringed 5 more of its patents, HTC getting into the fray, etc.

And then along comes Google. And instead of piling on to this patent suit scrum, they offer immunity instead. Which is astonishing.

I have to give some props to the FSF for asking for precisely what Google seems to have decided to do. They wrote an open letter asking Google to free VP8 and use it on YouTube. The bigger part of that decision now seems to have been effected. Which, to use the FSF’s own adjective, is amazing. And cause for both gratitude and celebration.

And of course this is not the end of the story, but the beginning. The license Google wrote for VP8 smacks of OSD goodness, but it has not yet been submitted to the OSI for approval. Should the OSI approve yet another license? Should the OSI treat a patent grant attached to a license we’ve already approved as two separate items, a patent grant (which is great) and a license we’ve already approved? Clearly Google is trying to do the right thing. We are trying to do the right thing. What remains to be seen is whether the H.264 are going to do the right thing and offer all their patents as required by the Open Standards Requirements (OSR) or whether Apple will do the right thing and defend, rather than attack, the open source community and its right to enjoy watching a movie on the laptop of their choice.