By placing its qualifying patents in OIN 2.0’s cross-license community, ByteDance strengthens a defensive resource for open source while distancing itself from the political baggage surrounding TikTok.
Open Invention Network announced earlier this week that ByteDance is on board to support OIN 2.0, the organization’s new patent non-aggression program to protect open source projects from patent trolls, which was announced in January. This will probably prove to be a great example of one hand washing the other, with at least one benefit for the China-based company that might not be readily apparent.
For OIN, the advantages are obvious. ByteDance brings valuable patents to the table, including patents related to TikTok, TikTok Shop, Lark, Douyin, and Toutiao, which are all ByteDance-owned platforms. This adds a lot of additional strength to OIN’s already powerful hand.
Patents are OIN’s backbone. Although the company has owned a small core of patents since its beginning, it continues to add patents to its portfolio that it doesn’t own, but which remain the property of the members that donate them. OIN adds them to a pool that makes up the largest active patent cross-license portfolio in history. The purpose is to safeguard open source projects — specifically, Linux and software that’s generally used to support it — from patent exploiters.
OIN calls it “patent non-aggression,” and it’s a bit of a flip of the “sue you, sue me blues” that George Harrison used to sing about. You could compare it to the “mutually assured destruction” of the Cold War days: if a patent troll comes along with a non-compliance claim against an open source project that’s run by an OIN member, that project can wave all of the patents in OIN’s portfolio in the troll’s face with, “Are you sure you want to do that? How many of these patents do you think your operation infringes?”
It’s not the ideal solution for taming the trolls, but in lieu of a major overhaul of the patent system, it’s what we’ve got.
“Internet platforms have transformed how people communicate, create, and consume content around the world. Open source technologies provide the infrastructure that enables these platforms to operate and scale globally,” Keith Bergelt, CEO of Open Invention Network, said in a statement. “We are pleased to welcome ByteDance to the OIN 2.0 community. Their participation helps reduce patent-related risk for open source software and demonstrates a commitment to collaborative innovation and patent non-aggression.”
OIN 2.0 Requires Deeper Commitment
By signing up, ByteDance joins over 4,100 members that have contributed more than three million patents and applications to the cause. For organizations that joined before January, the only cost would be to throw some patents into the patent non-aggression kitty. That changed with OIN 2.0.
The new program requires a participation fee for organizations having annual revenue above $10 million, with free participation remaining for companies and individuals with income below that amount. This means that ByteDance is coming on board as a paying participant. The amount it’s paying is based on a sliding scale, starting at $1,000 annually for companies with revenues in the $10–50 million range, and topping out at $24,000 annually for companies taking in more than $500 million.
2.0 also expanded the definition of the “Linux system” that OIN protects by adding more than 650 packages, including Kubernetes, Eclipse, automotive, and more to a Linux system definition it calls Table 13. Existing members who didn’t opt in to the new program continue to receive coverage for Linux System Tables 0–12. OIN 2.0 protections apply to Table 13 and subsequent expansions.
ByteDance’s and OIN at a Glance
So what does ByteDance get out of all of this? For one thing, it gets the same thing that all OIN members get, the right to use OIN’s patent portfolio as a weapon against patent aggressors.
In addition, it’s probably looking to do a bit of image cleaning after it took a bruising by being forced by the US government to divest itself of its majority US ownership of TikTok — by some measures the fifth largest social platform on the planet — over fears that the platform’s Chinese ownership could jeopardize the privacy of US users.
After years of pressure by both the Trump and Biden administrations, in January TikTok USDS Joint Venture LLC took control of much of TikTok’s operations in the US. This included the platform’s US user data, US apps, the recommendation algorithm, software assurance, and trust-and-safety/content-moderation decisions. ByteDance owns 19.9% of the new company, with Oracle, Silver Lake, and the Abu Dhabi-owned MGX each taking 15% ownership. The remaining 35.1% is held by a consortium of other investors that includes Michael Dell’s DFO Management.
Officially, the main fear alleviated by the forced break-up was that ByteDance could be put under legal pressure in China to spy on US users, but many took that to mean that ByteDance might willingly cooperate with the CCP — a sentiment echoed by both Trump and some right leaning news organizations.
ByteDance has always said otherwise. In a March 23, 2023 appearance before the House Energy and Commerce Committee, ByteDance CEO Shou Zi Chew said the company was “not owned or controlled by any government or state entity,” and that TikTok had neither shared nor received a request to share US user data with Chinese authorities. Working against the company was a 2022 acknowledgement of serious internal-governance failures when employees improperly accessed data involving U.S. journalists.
Considering that the company has a large footprint in the US that goes beyond TikTok, and which includes at least five office locations, the company is likely eager to put any questions about alliances behind it. Whether intentional or not, putting a large number of its patents in OIN’s non-aggression kitty to protect essential open source projects is a move in that direction.
“Open source software technologies play a vital role in powering innovation,” Juan Qi, the Chief IP Counsel at ByteDance said. “By joining OIN 2.0, we are demonstrating our active support for open innovation and for helping advance a collaborative environment where shared technologies thrive and evolve.”
Christine Hall has been a journalist since 1971. In 2001, she began writing a weekly consumer computer column and started covering Linux and FOSS in 2002 after making the switch to GNU/Linux. Follow her on Twitter: @BrideOfLinux
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