OpenMPE probably can’t compel HP by law to negotiate

While the advocacy organization for HP 3000 homesteaders remained quiet about whatever HP told the group on Jan. 31, OpenMPE and the 3000 community really don’t have a way to make HP negotiate for MPE’s post-2006 future. That’s the non-binding opinion from Eugene Volokh, who at age 14 was a founding partner of 3000 software supplier Vesoft. Volokh, who turns 36 this month, has become even more famous as a media-savvy legal expert and law professor at UCLA. A regular figure on national news networks such as ABC and CNN, Volokh said HP’s copyright on MPE is going to remain intact even after the company stops drawing any revenue from the product.

“When Hewlett-Packard stops selling MPE, or machines that use MPE, it still retains the copyright to MPE,” Volokh said. “That’s a pretty clear legal principle. Now, if somebody has a license that allows them to use MPE, and the license isn’t limited in time, their license will allow them to continue to use it even if HP stops supporting MPE.”

Legal issues of ownership remain among the hurdles that OpenMPE must clear if the MPE/iX operating system can be offered as a product independent of HP after 2006. But Volokh said that he doesn’t believe the OpenMPE movement needs a legal intellectual property expert to wrest an agreement on MPE’s future from HP.

“I’m not sure you need to know the law, or deal with the legal ramifications of this, other than to know that you have to negotiate with HP,” he said. “You don’t need to know the law in order to get a license, if it’s in HP’s business interests. Do you need know property law to go to the store and buy some apples? No. You may need to know enough law to know that you can’t just go to the store and pick up an apple without paying. If you’ve got a good business proposition for somebody, you don’t need to be a super lawyer for a person to say they’ll go ahead.”

The possibilities for MPE’s future include such licenses, royalties, and fair use, Volokh said. Fair use is fuzzy law, he added, and two important factors are whether the use is commercial and whether the fair use interferes with the copyright owner’s income. In the latter case, a copyright owner like HP could say that its income from selling HP-UX might be interfered with, if MPE/iX were to be released for fair use. “Maybe HP takes some aspects of MPE and incorporates them into a different operating system, and says that if people make copies of MPE they will compete with the new operating system that embodies some of copyrighted material in MPE,” Volokh said. “From a copyright perspective, if people want to make new versions of MPE, they need to negotiate with HP. The way to avoid copyright liability is to get a license.”

Volokh outlined an example of how HP might be convinced to negotiate licensing that would permit MPE/iX to be sold and enhanced by a new entity such as OpenMPE. In such a scenario, a customer using HP 9000s would also want to operate HP 3000s, and approach HP to say “Look, you want to maintain our loyalty as a customer, you’ve got to allow this other company to service us as an [MPE] customer, when you guys have failed to service us as a customer,” Volokh said. “HP might say sure. On the other hand, if the would-be MPE vendors don’t have any such powerful customers on their side, HP might say they don’t want to license any of their copyrighted works.” HP has opened a new organization for licensing its intellectual property.