The Viewer: licence to patent?

Just last week, I reviewed SpotON3D’s approach to accessing grid-based virtual worlds – presenting the Viewer through your web browser and, for those that use it, Facebook.

The presentation of the browser in this way is not new: as Kitely’s co-founder Ilan Tochner pointed out, a UK start-up company, Pelican Crossing (now defunct) did something similar back in 2007. How far that attempt might have gone is now a matter of conjecture. But Pelican Crossing were not alone: others have taken stabs at this approach – and as such, SpotON3D are hardly the first.

inDuality, circa 2007: Viewer-in-a-web page (image from Pelican Crossing)

But they are the first to apply for a patent on the capability to run the Viewer through a web browser / Facebook page with the intention of then licencing the technology to other grids wishing to use it on (quote) “a sliding scale to those grid owners that show an interest”. 

This intention to patient the technology around the wrapper-side of things has led to something of a row in the Open Sim community, with many leading lights (Mr. Tochner among them) taking issue with SpotON3D’s position – and not without cause, it would seem.

Essentially, the matter boils down to two core issues:

  • Whether the code used to present the Viewer through a web browser / Facebook page is actually patentable
  • Issues of open source licensing that involve the Viewer code as supplied to the open source community by Linden Lab under GPL

Patent pending

SpotON3D are focused on the patent issue, as this is obviously where the money is, longer-term, arguing that the software that enabled the Viewer is unique and therefore patentable. in this, they cite an essay on patents and open source software by Lawrence Rosen, an attorney-at-law and general counsel for the Open Source Initiative, which would appear to support their position.

The flip side to this is the issue of prior art (and, one would assume, the first to invent rule that is applied in the USA). This could be used to encourage the US Patents Office to re-examine SpotON3D’s patent application. However, in order to do so, those concerned at SpotON3D’s actions need to have the Patent Application Number for the plugin – and so far, SpotON3D have refused to release it. While they are under no legal obligation to do so, this is being taken as a sign of bad faith in the wider community.

Licence revoked?

The licensing issue is somewhat separate, but could call into question the benefits of patenting the wrapper technology.

The Viewer software in its native form is not well-suited to being presented through the an intermediary form of presentation such as a Facebook page or web browser. This raises questions as to what has been done to the Viewer code in order to make it more amenable for this kind of use, and while SpotON3D insist they remain in compliance with GPL requirements, but others argue this is not the case.

“How do you integrate your plugin with the viewer without modifying the viewer?” Gareth Nelson, himself a plugin creator asked SpotON3D. “You can’t just alter the render target. There are changes to the input handling needed to make it work inside a browser plugin applet, so you patched the viewer too.”

The crux of this point is that if the modified Viewer-side code can be shown to work closely with the plugin that presents it to a web browser / FB page, then it could be strongly argued that the plugin is in fact derivative work, and therefore itself subject to open source distribution in accordance with the GPL.

The potential pot of gold

To many, this all may sound like a lot of fluff; after all, it doesn’t impact on our ability to access the likes of SL and OpenSim directly through the many and varied standalone Viewer offerings that we have. But, while the Viewer-as-a-browser-plugin may seem questionable in reaching a larger audience, the same is not necessarily true with the ability to “access” grid environments through Facebook.

Say what you will about Facebook, but the fact remains that a huge number of people play games in it. Many of these people probably won’t touch OpenSim environments simply because a) they exist outside of Facebook and b) (more importantly), it all adds up to a lot of hassle – going to different websites, registering your details, selecting an avatar, downloading software, installing said software…

But – present Joe Facebook-User with the option of doing all this with the minimum of effort, and with software that self-installs in the background; and all from his Facebook page – and you have a potential winner. Doesn’t matter to him as to whether the Viewer ends up somewhere on his computer – as long as Facebook offers him the ability to remove it, should he become bored and move on to other things.

Linden Lab have been trying to court Facebook users for over a year – and largely tripping over their own feet in the process. Here is an approach that might just work; and those who hold the patent on it stand to potentially make a small fortune if others want to get in on the act – or at the very least, stands to funnel the flow of potential FB users into their own grid (with the financial rewards that also offers).

This is an issue that is likely to run for a time, with the debate now spreading to SpotON3D’s own statement on the matter of patents, which has added fuel to the flames that are already burning.

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6 thoughts on “The Viewer: licence to patent?

  1. A free OpenSim without a free viewer is useless so stating that this doesn’t jeopardize the long term viability of an open metaverse is somewhat myopic.

    If we let people stake a claim over pieces of the viewer or the server in order to demand that other people who wish to compete with them “pay up” then there won’t be free options or communal work towards creating a shared ecosystem. Even the threat of a patent can cause problems and, as other people have pointed out, many people aren’t able to defend themselves even when the patent is completely bogus.

    It is therefore the interest of the community to create an atmosphere that dissuades companies from trying to stifle competition using patent threats. It is completely irrelevant whether those patents are for things that are innovative or not, if you let one person claim to own an idea for software then others will do so as well and no one will give back anything to the community.

    Companies are held accountable by their share holders. If trying to use a software or business patent becomes overly expensive to the company doing so due to bad PR or lost sales then even existing patent holders will avoid using them as offensive tools.

    In the long run this type of defensive activism by the community can result in politicians who currently have no reason to vote for the abolishment of software and business patents to decide to listen to their constituents and take a stand for the better good.

    Once these types of patents are removed from the valid tools a business can use then the patent cold war in the software industry will cease to exist. This will free up a lot of money towards actually creating innovative R&D and return people to compete on features and price instead of hoarding ill-thought legal tools of mass destruction.

    Just read all the research on how much the current situation is bad for innovation in the United States. We can’t wait for companies or the government to get around to finally resolving the problem. We need to take a stand together as a community and force companies to act in ways that are, in the end, for their best financial interest as well.

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    1. I’ve no explanation for “patient”, other than the fact my proof-reading let me down in *two* instances where I’d hit the “i” in error.

      As to my spelling of “licence”, I’m afraid you are not entirely correct. Both spellings are entirely acceptable. “License” is simply the American-English spelling, whereas “licence” is the version accepted in places such as Australia, Canada, New Zealand and the United Kingdom (where I am from).

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  2. One bizarre scenario:

    * SpotON3D spends money on patent filing fees and goes through a PR wringer with the OpenSim community
    * It turns out that their plugin is, in fact, a derivative work Linden Lab’s GPL-licensed code, and therefore it too must be licensed under the GPL
    * After a long time at the patent office, the patent is granted to SpotON3D. (Yes, you can patent open-source code, but…)
    * SpotON3D finds themselves owning a patent, but they can’t charge royalties on it, because the GPL is very clear that the code must be licensed for everyone’s free use (or not licensed at all).

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