A while ago, when Google’s Android mobile OS first came out, I wrote an analysis of its use of Java, speculating that there were not only technical reasons for Google to come up with its own virtual machine (named Dalvik, if you care) but also legal ones.

I knew that because I had been one of the original proponents for the Apache Harmony project and I had watched with great interest (and other feelings, not all of them positive) the way the opening up of the Java platform unfolded (and how Sun is constantly trying to preventing it from unfolding it even more).

So Android came along and while I was excited to see somebody calling Sun’s bluff on their ability to prevent others to implement Java or even fork it, I was worried that Sun might actually sue Android phone makers preemptively and stop them from shipping.

Well, that fear got reduced substantially when the T-Mobile G1 phone hit the market with no (public) word or action from Sun.

Now, I don’t know if HTC (the handset maker) and Google (the software copyright owner) paid some licensing fees to Sun to keep them happy or at bay, but I couldn’t find any information on such a thing so I assume they didn’t or they would have found a way to leak it out.

Certainly though, if I were a cell phone maker or even a mobile service provider, I would be pretty nervous to pump so much hype into a platform with such an uncertain legal foundation.

That was until a few weeks ago, when the United States Court of Appeals for the Federal Circuit, in a decision that is likely going to shift a lot of power in many IP-heavy industries (such as the software one), basically reverted a previous court decision to allow business processes to be patentable and, well, now says they are not.

In very short, before this ruling, something was patentable if it created “useful, concrete and tangible result”. This new ruling now says that such a test “is insufficient to determine whether a claim is patent-eligible” and “reaffirm that the machine-or-transformation test outlined by the Supreme Court is the proper test to apply”.

This apparently simple decision has game-changing effects in how effective a patent claim could be in protecting an idea or an algorithm when it’s not tied to a special-purpose machine that executes it.

Which means, for Android and for the open Java ecosystem in general, that Sun’s legal sword against it is way less sharp than it was before the Bilski case, because, by definition of virtual machine, there is no special-purpose hardware machine, nor physical transformation that can justify the patentability of how the software runs.

The game is not over for software patents yet, as the court explicitly avoided stating something definitive over the patent un-eligibility of software and the equivalence of algorithm and processes to ideas, but it’s going to be much harder to obtain a software patent without any hardware associated to it and to enforce such an existing patent or use it as a deterrent in an IP portfolio.

And yes, this also means a lot less beach-front property for a lot of software companies that invested in patent portfolios.

So, OCLC decides to update its data licensing policy after 21 years and the librarians’ blogosphere goes berserk.

OCLC is a non-profit organization that offers services to libraries worldwide. The most important of their services is the collection and re-distribution of catalog metadata.

Ideally, it’s a Wikipedia for library index cards: say a new books comes out, instead of having thousands of libraries around the world come up with the same (or very similar) index card for that book (therefore collecting all the data about it), one of them can do it, submit it to OCLC and every other library now has access to it and can use it for their own catalogs (and eventually correct it and submit it back corrected).

Just like Wikipedia, the person that contributes the data is not who decides how this data gets used, but there is a mutual agreement, a contract, that regulates who can do what with this data.

For Wikipedia, this agreement says that your data will always be free for others to use and modify and that Wikipedia has no special place in this ecosystem. This agreement was carefully crafted this way to avoid people having the feeling of working for them for free.

You could think of OCLC like a Wikipedia for library cards, but there is one huge difference: there is no freedom to fork. Basically, by using OCLC’s data you agree to protect their existence.

And their monopoly (nobody else in the world does what they do, at the scale they do it).

And with data that they didn’t even create.

And they might not even fully own (most of the data in an index card is factual and copyright law, in many countries, states that factual information cannot be copyrighted… otherwise, it would be pretty hard to have diversity in journalism, for example).

So, OCLC decides to update its data licensing policy after 21 years because, quote: “The Guidelines have also been frequently faulted for their ambiguity about WorldCat data sharing rights and conditions.”

Having had to deal with such ambiguity myself when discussing about releasing the Barton Library data from the MIT Libraries, I have to say that I very much welcomed any sort of update in clarification and a more modern and up-to-date licensing agreement between OCLC and its members libraries, if only to focus more precisely what is wrong with it.

Some people believe that OCLC is a thing of the past, created in an era where data interchange and inter-librarian communication was hard, more expensive and much harder to coordinate and destined to succumb to some cheaper and higher quality grass-root approach that will emerge spontaneously on the internet.

I personally don’t subscribe to that vision: I’ve witnessed with my own eyes the Apache Group turning into the Apache Software Foundation and growing from a few tens of people to thousands, from a relatively unknown bunch of geeks to a pillar of the web ecosystem, a business-school subject and a poster child for modern bottom-up self-organization.

My point being that any grass-root approach that will get big enough to take on OCLC on the metadata collection and redistribution service that libraries need will have to incorporate under the pressure of its users (if only for legal liability protection) and will have to find an answer to the same set of problems (policy, governance, financial sustainability) that OCLC has.

So, OCLC, or another non-profit entity, is necessary to exist in this space, no matter how the data is generated and what license regulates its sharing.

Unfortunately, OCLC itself seems to believe they are a thing of the past, that they are going to fall victim of the drop of data distribution and coordination costs, much like the record industry, and that they have to fight with their teeth to avoid to succumb to the web-powered winter of data monopolies.

I don’t see any other explanation for a policy that prevents people from competing with them, with data they don’t own and that others contributed to them: if they thought their existence was not in danger, and their membership loyal, why would they want to prevent others from competing with them?

Last time somebody tried a similar anti-competitive move, BitKeeper comes to mind, it unleashed a tremendous amount of frustration-generated creative effort that not only displaced and totally evaporated BitKeeper’s position in that market overnight, but also reshaped the entire market because of some of the innovation that was created in the process.

It is true that OCLC’s monopoly position in this market is eroding: it is only a matter of time geek techy librarians catalyze enough coordination to eventually re-route even just a tiny fraction of the cataloging effort of librarians around the world to another data pool, one that feels more like an open Library of Congress and less like a librarian version of Microsoft.

OCLC can do exactly one of two things now:

1. open up itself so that it becomes the de-facto centroid of an otherwise opened and more diverse ecosystem, where people are excited to contribute to them and not forced to.
2. try to use all the power they have to stop others from competing with them and displace them.

The first one seems like the most risky one, but it’s really the second.

The first strategy will have OCLC first and foremost rethink their pricing strategies (librarians have to pay to contribute? really!?) and reconsider their place in a world where the center is a place you earn day-by-day and you don’t just inherit, with no additional merit, from the day before. But at least it earns you a survival chance that is much higher than zero, if only because your momentum is great and centroids in open markets tend to align with their previous centers, at least for a while, even when de-regulated.

The second strategy is really just buying some time: there is very little that OCLC owns (data wise) that cannot easily be replicated by the library world given enough incentives and coordination. Their new policy just tries to make it harder, by giving librarians enough rights to the data not to bother them and by hoping to stop the bleeding of their data into other competitive systems.

But buying time for what? Hoping that the web will go away? That librarians will stop caring about an organization that doesn’t want to exist because of merit and excellence but just because they managed to find a way to bootstrap a self-sustaining parasitic dynamic for data exchange 40 years ago?

And, let me remind you: OCLC’s own monopoly sits on a pile of data that is the easiest pool of data to replicate ever: it’s relatively small (if 0.1% of the facebook users cataloged one book a day, they could replicate the entire OCLC catalog in 2 years), it’s 90% factual therefore un-copyrightable (only categorization can be considered a form of subjective creation, certainly not copying as-is information from the book itself like title, author or publisher), it’s created by people that do not work for OCLC and that can, therefore, provide their services for others if so inclined, and it’s data that very rarely changes.

I understand it’s hard to let go of a monopoly once you have one; I don’t know of any institution that spontaneously transitioned from a monopoly to a freer market as a way to prevent displacement. But normally the resistance is painted with “our stock holders wouldn’t like it” motifs, which are a little harder to replicate in a non-profit context.

OCLC has slowly morphed from a welcomed institution tasked to help libraries reduce coordination costs to an annoying institution tasked to protect its existence and its monopoly, even at the cost of alienating its own membership.

It’s too bad, really: by opening up the playing field, they would still be the main beneficiaries of librarians’ contributions (because of their brand and the innate institutional inertia of their members) and trigger a renaissance of library technologies under their supervision or at least with their collaboration.

By locking the place down even more and alienating a bunch of alpha-librarians, they’re doing nothing but catalyze the movement that will eventually lead to their obsolescence and the establishment of another organization, similar in every aspect to OCLC save for one: the short sightedness in how to entice contribution without alienating the contributors.

Barack Obama (EMMANUEL DUNAND/AFP/Getty Images)

Tonight we proved once more that the true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals — democracy, liberty, opportunity and unyielding hope. [from Obama's victory speech, 13:37]

Today is a happy day, a day of hope after so much fear, so much hate, so much negativity.

I’m not so naive to think that a single man can change things for good, even if he’s capable, smart, honest and cares. I’m not so silly to think that just by thinking positively, your enemies will too. And I’m not so blind as not to see those tens of millions that didn’t vote for him and for who he’ll have to make decisions too.

But today is a happy day because it’s a lot harder to hate America.

Or to feel guilty for being a foreigner that pays US taxes (and without representation).

Today is the day not only the people of this country should feel proud of, but the rest of the world too, as this election gives hope to a different way of looking at problems, a more positive way of thinking about solutions, a more embracing way of looking at diversity.

But the road is long and the climb steep, as California shows when with one hand elects Obama and with the other bans gay marriage.

Still, today the weather is better than yesterday’s to start the hike.