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Date: 28 Feb 2000
From: Richard Caley
To: ask_tim@oreilly.com
Subject: Open Source, Patents and O'Reilly

A quick topical question.

You are probably aware of RMS' [Richard Stallman's] recent call for a boycott of Amazon.com for their persuit of a software patent claim against a rival.

As a company with close connections with both Amazon and the Open Source community, O'Reilly's position on this issue would be very interesting. To me and I'm sure to many others.

--Richard


Richard,

I have struggled with this issue since RMS first approached me to sign on to his campaign. I've declined to urge a boycott because I do think that Amazon provides an incredible service, and one that many of our customers find valuable. At the same time, I completely agree with RMS that the Amazon 1-Click Patent is one more example of an "intellectual property" milieu gone mad.

In the first place, this patent should have never been allowed. It's a completely trivial application of cookies, a technology that was introduced several years before Amazon filed for their patent. To characterize "1-Click" as an "invention" is a parody. Like so many software patents, it is a land grab, an attempt to hoodwink a patent system that has not gotten up to speed on the state of the art in computer science. I'm not completely opposed to software patents, since there are some things that do in fact qualify as legitimate "inventions", but when I see people patenting obvious ideas, ideas that are already in wide use, it makes my blood boil.

I also want to say that a patent on something like "1-Click ordering" is a slap in the face of Tim Berners-Lee and all of the other pioneers who created the opportunity that Amazon has done such a good job of exploiting. Amazon wouldn't have existed without the generosity of people like Tim, who made legitimate, far-reaching inventions, and put them out into the public domain for all to build upon. Anyone who puts a small gloss on this fundamental technology, calls it proprietary, and then tries to keep others from building further on it, is a thief. The gift was given to all of us, and anyone who tries to make it their own is stealing our patrimony.

Patents like this are also incredibly short-sighted! The web has exploded because it was an open platform that sparked countless innovations by users. Fence in that platform, and who knows what opportunities will never come to light?

I urge Amazon to give up on this patent. I am confident that it will eventually be overturned in any case. And in the meantime, Amazon will not only reap a harvest of ill will, they will erode the soil of innovation on the web. What's more, they are a fierce competitor who has already established a dominant market position. They can win without resorting to cheap tricks.

I'm sorry to have taken so long to respond to your question. I thought it best to give Amazon a chance to respond to a private letter before going public with my response. Here's the email I sent to Jeff Bezos on January 5:

Subject: Amazon 1-Click patent
Date: Wed, 05 Jan 2000 10:03:59 -0800
From: Tim O'Reilly
To: jeff@amazon.com

I wanted to give you guys the heads up that I'm getting a lot of pressure from my customers (via my Ask Tim column on our website and direct customer e-mail) to comment publically on the Amazon 1-Click patent. I was also approached by Richard Stallman to help him publicize his Amazon boycott, and I declined, but I do want to let you know that I agree with his message although not with his methods. I will be forced to make some kind of public comment shortly, and I wanted to let you know what the substance of it will be before it goes out to the world.

First off, I think that you are reaping a harvest of ill-will with the technical community. While I know you are setting your sights on a wider consumer audience, the serious technical community represents the core of your early adopters and many of your best customers, especially in the book market. You have only to look at the presence of O'Reilly books on your bestseller lists vs. those at your competitors to realize how much of your computer book sales are driven by the hard core technical community that is O'Reilly's customer base. And I can tell you that those customers are solidly against software patents.

Second (and this is the point most important to me), the web has grown so rapidly because it has been an open platform for experimentation and innovation. It broke us loose from the single-vendor stranglehold that Microsoft has had on much of the software industry, and created a new paradigm with opportunities for countless new players, including Amazon. The technologies that you have used to launch your amazing success would never have become widespread if the early web players, from Tim Berners-Lee on, had acted as you have acted in filing and enforcing this patent. Because, of course, you are not the only one who can play the patent game. And once the web becomes fenced in by competing patents and other attempts to make this glorious open playing field into a proprietary wasteland, the springs of further innovation will dry up. In short, I think you're pissing in the well.

Patents such as yours are the first step in vitiating the web, in raising the barriers to entry not just for your competitors, but for the technological innovators who might otherwise come up with great new ideas that you could put to use in your own business. It's a well known technology truism that all of the smart people don't work for you, and that one of the surest ways to success is to get more ideas and more work out of people outside your own fences. This is one of the key insights that brought us the internet, and is the key to the success of open source projects like Linux, Perl, and Apache.

There are more than a few similarities between sustainable farming (versus resource exploitation) and technological innovation that are worth meditating upon. You may gain short-term advantage by taking as much as you can from the soil without regard to building it up again, but eventually, your soil quality will decline, and you'll find yourselves having to spend more and more on added fertilizer.

You've gained enormous competitive advantage by making use of technologies that were freely given to the world. If players like yourselves succeed in replacing that gift economy with a dog-eat-dog world in which everyone tries to keep their advances to themselves, and worse, tries to keep others from replicating them, you'll soon find yourself either spending a larger and larger part of your budget on developing your own technology, or, more likely, you'll find yourself hostage again to commercial software vendors whose interests may not be aligned with your own.

If you see yourselves primarily as a technology company, you might want to play the Microsoft game of trying to corner the technology market with proprietary APIs, file formats, and patents, but if you see yourself as a great customer service and marketing company, you want other people inventing technology platforms that you can build on. That's been a key part of your success so far: You've been able to take a great open platform, and build vertical applications that provide a fabulous service to your customers. Filing frivolous patents will only retard the growth of the platform.

And that's a third point: The patent is very unlikely to be upheld in the long run. It's a classic example of the kind of software patent that would never be granted if the patent office had even the slightest clue about software: A trivial application of cookies. I'd be very surprised if there isn't a fair amount of prior art even in using cookies in conjunction with saved credit card information. But even if there isn't, the basic method of saving state information about prior visitors is so fundamental that there's nothing new in what you did.

Finally, I want to say that I admire you guys tremendously. I speak and write constantly about Amazon as the paradigmatic example of "the next generation of computer applications." I think that you're a terrific competitor, delivering a terrific service, and I don't think you need to use tools like this patent to keep yourselves on top. You can win without it, and I firmly believe that in the long run, it will do you more harm than good.

I realize that having come out so strongly behind this patent, it would be very difficult for you to do an about-face and back off from it. However, I urge you to do so, and would be glad to help you craft a PR strategy that would make it a net win for you in terms of public perception. In fact, I'd love to see this as part of a wider effort by Amazon to embrace and support the open standards of the Web and the power of open source software, both of which have been foundations of your success.

As I've suggested publically on more than one occasion, I believe that the companies that have profited most from the web have an obligation to give something back. This is more than a "thank you" to the developers who made your success possible; it's also an act of self-interest, to keep the innovations coming.

I hope these comments have given you food for thought. I'd love to hear back from you, and to find a way to work with you to support the open standards of the web.

Jeff replied via email on January 27. While I don't have permission to quote his message, I can give you the substance of it, namely that he shares my concern for both customers and innovation, but that while he believes the patent process can sometimes be abused, he believes that this is not the case with Amazon's 1-Click patent.

Given this response, I've decided that I need to speak out on this issue. While the Amazon 1-Click patent is far from the most obvious abuse of the patent system, it is one that affects the competitive landscape of my own business, and one where, as a publishing industry spokesperson, I most feel obliged to make a statement.

What's more, since you sent in your question, the situation has gotten worse. The patent office has also granted Amazon a patent on their Associates program. They haven't yet tried to enforce this patent against their competitors, but if what they've done with 1-Click is any sign of their intentions, I imagine that it's only a matter of time unless their customers and suppliers speak out about their reckless behavior.

I'm also publishing an "open letter to amazon" that I invite customers to sign. I hope to give Amazon an idea of just how many of their customers share the feelings that this patent is anti-competitive and that it is having a chilling effect on the growth of e-commerce applications.

What's more, we've put together a patent web site on the O'Reilly Network for breaking news on this and other software patent issues. We'll develop this site as the issue unfolds.

Those of you who want to review the actual Amazon 1-click patent filing can obtain it from the IBM patent server via http://www.delphion.com/. There are a number of other Amazon e-commerce patents available there for your scrutiny.

--Tim

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