Keep out the lawyers

Free software, open source software and creative commons are all efforts to use copyright law to enforce a particular philosophy of collaborative innovation.( In many cases, the philosophy is more important than the technology, as Jason Dedrick & I discussed in a 2007 paper on the minimal impact that F/OSS ideology have upon F/OSS adoption.)

At the same time, possession (as they say) is 9/10 of the law. Proprietary software was a barrier to imitation because of trade secrets, not copyright. Inherently, giving out your source code means that other people have it and that you need a lawyer (and a court) if someone uses your code in a way you don’t want them to.

A friend (and blog reader) forwarded to me an interesting summary of an OSS dispute involving Jin (a GPL-licensed Java client for chess servers) and iChessU, a new company.

Sasha Maryanovsky, maker of Jin licensed his code for US $4,000. iChessU used the code but reneged on papying so Maryanovsky sued in Israeli court. Both sides hired lawyers, filed briefs, and also argued the case in the court of public opinion. (Linux.com wrote up the dispute in 2006).

Maryanovsky summarizes the saga in his blog, which eventually settled in 2008. I don’t know the billing rate of an Israeli IP attorney, I’m guessing that both sides would be lucky if they paid less than $100k to their attorneys. (The settlement terms are confidential, but if the case against iChessU is as open and shut as GPLniks would claim, it’s likely that it paid both sets of legal fees.

Interestingly, Maryanovsky’s home page (and LinkedIn account) imply that he’s an unemployed Java programmer. Open source is often used by student programmers to signal their skills and availability to the labor market, so either the Java programmers labor market is very soft, or Maryanovsky sent the wrong signal. (Perhaps a JME/J2ME social networking client would have been a better signal).

Skype, the GPL scofflaw

For once, a story about Skype that has nothing to do with its business model, its impact on the telecom industry, pushback by powerful incumbents, or anything else having to with its real business.

This week, the blogs and Linux sites are abuzz because Skype supposedly lost a court case for violating the terms of the GPL (v2). The Inquirer (of Britain) started on Wednesday, then PC World on Thursday, then Linux Devices on Friday. Linux Devices notes that all claims about the case trace to an article in one German magazine, Golem, and can’t be independently verified, and it seems to be the only story with significant original reporting.

The purported case revolves not around Skype’s software, but its distribution of a Linux-based Wi-Fi phone, SMC’s WSKP100; a separate action is also said to be pending against SMC Networks, although Linux Devices could not verify that. This is a typical embedded GPL dispute, ala TiVo or anything else.

If we assume that everything reported is true, there were several interesting things about the case. First, it was about a marginal violation of how the code was distributed, and not something about the core compulsory sharing (some call “viral”) proposition of the GPL: once you put your code with my code, your code has to adhere to my rules. It doesn’t seem like Skype would ever be a good test case, since they already provide their source code under at least some conditions.

Second, that the case was brought by a German gadfly, GPL-Violations.org, and not the Free Software Foundation. Finally, it adds to the many cases we have in Europe, but AFAIK we still don’t have a relevant legal precedent in the U.S., or, even more importantly, in China.

So are there no GPL zealots in the US (unlikely) or China (probably not worth dying for)? Are there no comparable violations in the US (also unlikely) or China (darn near impossible)? Or are the relevant courts not as interested as German courts in enforcing compulsory sharing?

Technorati Tags: compulsory sharing, GPL, open source licenses, Skype

Samba 3.2 will be GPLv3

I hadn’t noticed, but the GPLv3 claims to be final. They even had a news conference to announce that it was shipping, complete with a video feed of Fearless Leader.

Today’s news is saying that Samba — the open source answer to Microsoft’s SMB — will adopt the GPLv3 with Samba 3.2.

This is not really news. Samba already said that seven months ago. And the person making the announcement, Jeremy Allison, quit Novell over its patent deal with Microsoft and thus I suspect has pushed for GPLv3 for its patent retaliation clauses. And Allison was there blessing the GPLv3 when it was announced:

Jeremy Allison, speaking on behalf of the Samba team, states that they see the new license as “a great improvement on the older GPL,” and that it is “a necessary update to deal with the new threats to free software that have emerged since version 2 of the GPL.”

Hmmm, I wonder what threats he has in mind?

Although there’s less here than meets the eye, it’s still a badly-needed win for the new and “improved” GPL. Let’s see how many join the FSF’s jiihad against “Tivoization.” The specific gripes about failure of compulsory sharing with the Tivo seem to be mostly Linux-related, where there’s really only one ballot that matters.

Technorati Tags: GPL, Microsoft, open source licenses

Non-compulsory sharing

One of the original goals of the GPLv3 was to make application services trigger the compulsory sharing clause. Now CNET reports that Google has shared its changes to MySQL to improve its reliability and manageability.

Google is famously secretive, treating most of its internal technical and human systems as trade secrets. Despite this, it’s decided that it’s worth sharing its MySQL changes — even though it doesn’t have to. Perhaps it wants its changes to become part of the main distribution, as I found Lawrence Livermore when shared its Linux clustering changes. Or maybe it’s hoping others will build upon and improve its code.

Either way, sharing happens without holding a gun to people’s heads. It happens in BSD. It happens in Apache. Sure, there’s a tension between common and private interest, but sharing already happens today when it’s economically rational.

Technorati Tags: compulsory sharing, Google, GPL

Eclipse as the happy medium

For the past three years I’ve been studying open source communities with Siobhán O’Mahony. We produced one paper derived from our interest in a particular open source problem (code without community), and will be presenting our latest paper next month at the European Association of Management conference in Paris.

As part of that research, I was struck by how unusual the Eclipse Foundation is. Apache is also governed by a foundation, but corporations are deliberately de-emphasized in favor of individuals. The OSDL and FSG (er, Linux Foundation) have the same industry consortium model, but (unlike Apache or Eclipse) it’s hard to argue that the LF controls Linux.

In response to the same Matt Asay column I mentioned yesterday, Mike Milinkovich, the executive director of the Eclipse Foundation also blogged about the ongoing GPLv3 saga. Milinkovich must have been channeling me (only kidding) when he wrote:

If we replace the monotony of proprietary software with the monotony of a single free software license, we are all losers. Diversity of licenses allows diversity of business models and diversity of competition. Which is a very good thing for the entire community and industry.

On the other hand, Milinkovich seems to waste a lot of bits (if not dead trees) genuflecting at the Free Software Foundation altar:

1. Free software != GPL. Free software is a principle, and the GPL is one expression of that principle. …
2. GPL != copyleft. There are quite a few other copyleft licenses (both "strong" and "weak"), the EPL being one. Not everyone agrees with the specific copyleft approach of the GPL. …
3. L != monetization. There are a great many successful companies built on top of the GPL. But in addition there are also some very successful business built on top of other licenses such as the EPL, Apache and MPL. …

I don’t quite get why approval from the FSF or other GPLniks is so important to Milinkovich or the foundation. The whole reason the term “open source” was invented was to legitimate collaboration between industry and community without having to adhere to the FSF dogma. The Eclipse Public License is an OSI-approved license, and in fact made the cut when the OSI leaders decided to deprecate the vast majority of licenses. As a “weak copyleft” license, the EPL (like the MPL and CPL) is an intermediate point between the completely open (and free) rights granted by the BSD and Apache licenses, and the compulsory sharing of the GPL.

Milinkovich certainly knows what he’s talking about. He worked as a manager for Object Technology International, the Smallltalk shop that IBM bought in 1996 that became the IBM Ottawa Software Lab. As an IBM division, OTI developed the Java IDE that IBM released as Eclipse in 2001. Milinkovich has run the Eclipse Foundation for the past three years.

Milinkovich did hold his head high with his final comments:

So while the GPL community can be quite rightly pleased with itself on completing GPLv3, I hope that they keep the dialogue with other communities positive and respectful. The open source community is a big place, and there is room for many different viewpoints, licenses and business models.

Personally, I’d go further by saying GPL and its adherents are a small part of the overall open source economy that has developed over the past decade — one that would be rather unimportant if Linus Torvalds somehow abandoned the GPL. However, it’s clear that the major players in the industry have to make nice with the FSF because (if for no other reason) its list of approved licenses has a huge impact on their business strategies.

Overall, Milinkovich has a surprisingly capitalist bent for a Canadian (kidding again). But then he’s managing an annual budget of (my estimate) nearly $5 million paid by more than 100 member companies. These firms are not supporting the foundation for the betterment of society, but to further their own specific (profit-making) business models.

Technorati Tags: business models, Eclipse, GPL, open source licenses

IBM and Joel vs. FSF and Matt

The latest update on the GPLv3 saga is that it has (apparently) been dissed by IBM’s top software honcho, Steve Mills. A lifetime IBM employee, Mills was the subject of a front page article (subscription required) in Monday’s Wall Street Journal:

Increasingly, the public face of International Business Machines Corp. is that of Steve Mills.

Mr. Mills heads IBM's rich and acquisition-hungry software unit, which has buoyed results in recent quarters. He frequently represents the company at investor conferences and software-customer gatherings, and his rising profile reflects a new reality at the technology giant.

IBM still gets most of its reputation from its computers and most of its revenue from services, but most of its profit growth comes from software. … On a stand-alone basis, IBM would have had the second-highest revenue of any software company after Microsoft Corp. Software revenue grew 14.4% in the fourth quarter and reached $18.2 billion last year. Software accounts for only 20% of total revenue -- but 40% of earnings. Fast-growing IBM brands include WebSphere, a variety of Internet tools for business, which gained 23% last year; Tivoli, which manages computer systems, up 26%; and Lotus, which makes email software, up 12%.

Last week, the trade journal CRN tried to drag Mills into the ongoing GPLv3 controversy.

"At some point you become so shrill and beyond what's required that you lose the audience and the audience moves on to something else," he said.

"We'll have to see what finally evolves through the [GPL] process, it's going through an update and the Free Software Foundation has a particular view of free software. Free software is a wonderful thing but there's also a business model."

"We think there are other licensing techniques, the Apache license and others are somewhat less onerous. We use them ourselves. We don't use the GPL for reasons of its restrictions," Mills said.

On Tuesday, my friend Matt Asay (co-founder of OSBC and former Novell OSS strategist) slammed Mills:

But IBM's fetish for all things Apache has kept it from seeing open source as a tool that it can monetize directly…

It's not clear what audience Mills is worried about the FSF/GPL losing. After all, the GPL governs over 72% of the projects on Sourceforge. He may well wish that Linux, Alfresco, Jasper Reports, Xen, etc. etc. were Apache-licensed so that he could drop them into his proprietary products and keep to his 20th Century business model. But just because it's comfortable for him doesn't mean that the open source world should capitulate to his whims.

So IBM hasn't figured out what the rest of us know with ever-increasing certitude: it's possible to monetize open source directly. Ironically, it becomes easier the more freedom that imbues the software. Even more ironically, this is so because companies like IBM don't want to touch software that is free - it threatens their proprietary software.

I think highly of IBM, but find its antipathy to the GPL to be silly.

I think highly of IBM too, because its early support for open source made it legitimate for IT buyers around the world. Unlike the one-trick ponies of open source startups (that depend on such things like dual licensing), IBM has the broadest range of open source participation and greatest diversity of open source business models of any company in the world. It creates open source and gives it away (like Jikes), it takes its software to create a new community (Eclipse), it installs and supports (the GPL-licensed) Linux and pays to support the Linux Foundation (née OSDL), and they were the first major corporation to back the Apache Foundation. The list goes on: there is no “IBM” strategy for open source, because no company with 330,000 employees can think with one mind or speak with one voice.

As for Matt’s criticisms, the easiest to knock down is license popularity on SourceForge. The vast majority of software projects on SourceForge are vanity projects, irrelevant to business, consumers or the economy. Comparing SourceForge license choices to those of real software is like comparing the IT choices of bloggers to those of major news organizations.

It’s also silly (as Matt knows) to suggest that IBM has an Apache fetish. IBM, after all, brought us the IBM Public License (which became the Common Public License which became the Eclipse Public License), one of the first licenses derived from the seminal Mozilla Public License. Using the CPL/EPL, IBM created the Eclipse project — the first open source project to really integrate vendor sponsors, a non-profit foundation and the community from day one.

Instead, I think Matt has a GPL fetish. In its most narrow (some would say precise) construction, the term “open source” means any license approved by the OSI that conforms to its Open Source Definition. The Free Software Foundation notwithstanding, there is nothing in the OSD (or the OSI policies) that say that the GPL is any better than the MPL, EPL or even the Apache or BSD licenses.

I think highly of Matt Asay, but his love affair with the GPL is silly.

Graphic credit: Chris Onsted’s Achewood cartoon, via Joey deVilla’s blog

Technorati Tags: compulsory sharing, GPL, open source licenses, IBM

One more cheer for the FSF

In noting the improvements in the latest draft of GPLv3, there is one I missed: dropping the SaaS compulsory sharing. Blogger Fabrizio Capobianco is ranting that the latest draft ruins the GPLv3, which he had counted on closing the “ASP loophole.” Matt Asay is drinking Fabrizio’s Kool-Aid® (or Pellegrino, or [fill in appropriate metaphor here]).

Messrs. Capobianco and Asay think it’s terrible that companies can bring open source in house, use it to offer services over the web, make their own changes and not give back those changes. (Think Google). The GPLv2 defines distribution as, well, distributing your software, so offering services that run on that software doesn’t trigger the compulsory sharing provisions. (If you haven’t been down this path, see Larry Rosen’s book in my OSS bibliography, or the GPLv2 chapter available free online).

At one point, GPLv3 was intended to trigger the GPL’s distribution clause with online services (such as ASPs and Software-as-a-Service), with the intention that any company using GPLv3-licensed code to deliver services would have to make their changes available to the rest of the world. As I found in my consulting practice, such mandatory disclosure would be a great benefit to dual license companies, because it would add one more hassle to slow competitors and force people to pay up.

Today a few diehards are annoyed that Google, Amazon and others run Linux server farms and don’t share their changes. But five years ago, they were desperate for such validation, and later proud that such (oxymoron alert) blue chip dot-coms endorsed a community-developed technology as suitable for the most demanding mission-critical IT operations.

Suppose Linus Torvalds agrees to the GPLv3 (his big issue seems to the anti-DRM clauses of the previous draft). Suppose the GPLv3 does “close the ASP loophole,” requiring Google etc. to share their changes with the world. So what will happen? Perhaps some would share their changes.

But I also think there would be a resurgence of interest in technologies made available under more open licenses (i.e., without compulsory sharing). Things like OpenBSD or FreeBSD might suddenly get popular again. Or the companies using the existing Linux under GPLv2 could just decide not to take any updates under the new license. In a free market, the decentralized choices of private actors are frustrating to social planners: when people have choices, they’ll do what’s in their own self-interest, not what the social planner wants them to do.

The FSF seems to be reacting realistically to market signals, despite what some of its idealist supporters would want it to do. It deserves to be commended for such pragmatism, because dealing with the world as it is will be a far more effective strategy in the long run.

Technorati Tags: Google, GPL, open source licenses, SaaS

FSF seems to listen

In response to criticism of the earlier drafts of GPLv3, on Wednesday the Free Software Foundation announced a third draft of the proposed GPLv3.

Linus Torvalds, who hated the previous draft, seems to find this one much improved, particularly on the patent retaliation clause 7(b). While he seems unconvinced that it’s better than GPLv2, he’s now willing to consider migrating the Linux kernel over to v3.

Of course, more aggressively protecting free software users from software patents is one of the major goal of the GPLv3. FSF “licensing compliance engineer” Brett Smith notes that the latest draft was deliberately crafted to undercut the Microsoft-Novell deal and its controversial terms about patent indemnification.

The FSF claims is this is the penultimate draft — to be discussed for 60 days — followed by the final draft open for discussion for another 30 days. They really want this train to leave the station in 2007, whether or not everyone is on board.

Still, given the tendency of the FSF and its supporters to be ideologues (or “purists”) in opposition to the broader “open source” community, the willingness of the GPLv3 license developers to listen and respond to external criticisms is an encouraging sign.

Technorati Tags: GPL, Linus Torvalds, Linux, open source licenses

Linus again disses GPLv3

In an e-mail interview published Monday by Information Week, Linus Torvalds again expresses his preference for GPLv2 over GPLv3. He lists a number of reasons:

First off, I don’t even know what the GPLv3 will look like. I would be totally crazy to accept a license for my code sight unseen. I think people who just say “version 2 or any later version” on their code probably don’t care about the license of their code enough. Before I say that “yes, you can use my code under license X,” I’d better know *what* that license is.

He lists other points. He thinks the v3 drafts so far are worse than v2, including “glaring technical problems.” But then he gets to the rub:

Finally, the real basic issue is that I think the Free Software Foundation simply doesn’t have goals that I can personally sign up to. For example, the FSF considers proprietary software to be something evil and immoral.

Me, I just don’t care about proprietary software. It’s not “evil” or “immoral,” it just doesn’t matter. I think that Open Source can do better, and I’m willing to put my money where my mouth is by working on Open Source, but it’s not a crusade — it’s just a superior way of working together and generating code.

He also notes that the GPLv2 is about enabling collaboration, whereas the changes in the GPLv3 emphasize what can’t be done (e.g., DRM support).

If the most popular GPL software isn’t going to adopt GPLv3, then it perhaps it is dead on arrival. This is also consistent with the hilarious (albeit understated) rivalry scene with Torvalds and Richard Stallman in the documentary Revolution OS.

Hat tip: Matt Asay and his Open Sources blog.

Technorati Tags: GPL, Linux, open source licenses, Linus Torvalds

GPLv3: Stallman’s “New Coke”

The storm over the Free Software Foundation’s proposed version 3 of the GPL has been brewing for several years, far longer than the 16 days this blog has been around. Driven by Richard Stallman’s desire to expand ““software freedom,”” the FSF’s proposed license changes have spawned various controversies over the anti-DRM clause, patent retaliation, license compatibility, and a more expansive definition of distribution. Even though the aggregation clause is an improvement, it retains deliberate ambiguities by avoiding standard legal terminology.

Most significantly, the new license has been criticized by Linus Torvalds and his lieutenants, mainly over the DRM issues. It is possible that Linux may not move to the new license, but instead accept patches only under a “GPL v2 or later” provision, since right now the leaders have absolute authority over what to accept. Certainly there is no requirement that existing GPLv2 packages switch to GPLv3; for example, MySQL has changed its terms so that it is not required to automatically update to the new license.

It seems clear that the GPL needs Linux more than the other way around. IMHO, the tremendous mindshare of the GPL has been due to its adoption by Linux rather than the other way around. One of my favorite open source books, the autobiographical Just for Fun (pp 96-97) makes it clear that the then 22-year-old Finnish college student picked the GPL as an afterthought in 1992 when he needed to have some way to distribute his increasingly popular operating system.

Andrew Morton and 9 other kernel maintainers said it best:

The current version (Discussion Draft 2) of GPLv3 on first reading fails the necessity test of section 1 on the grounds that there's no substantial and identified problem with GPLv2 that it is trying to solve.

On Friday, Bill Weinberg (of the late OSDL) wrote a detailed column about the issues he has seen in 7 years as an embedded Linux advocate, including how FSF thinking got us to this point. His conclusion:

The FSF role will shrink to marginal proportions, and GPLv3 will become, sadly, just another license.

Sounds a lot like “New Coke” to me.

Technorati Tags: embedded Linux, GPL, Linux, open source licenses

The GPL Won’t Solve This NIH Problem

I almost called this “NIH — Not Just for Programmers Anymore,” “Physiologists Who Need a GPL” or perhaps “Forking the Human Body.” The 1st choice is particularly fun because NIH has a double meaning, one for the IT sector and another for health care.

There was an interesting tale of forking at this week’s DCCI conference at the National Academies of Science and Engineering. The story was told by Brian Athey, a bioinformatics professor at the University of Michigan. Because his slides are not yet posted, I need to reconstruct the story from my sketchy notes.

Back in the early 1990s, the federal National Library of Medicine began its Visible Human Project. There’s a nice article at GE explaining how the various 3D imaging technologies (plus cadaver slices) were used to generate the dataset. (For the IT types, the GE study talks about using the big iron of the day — SGI dual 150 MHz screamers). As Athey told it, after the NLM had a virtual man (and then woman), everyone else wanted one, including DARPA with its Virtual Soldier, NASA with its Virtual Astronaut, and others I couldn’t type quickly enough. Even Ray Kurzweil wants to get involved.

If I understood his point, there’s a lot of re-inventing the wheel, everyone creating their own human by starting over from scratch, rather than doing cumulative innovation where one researcher builds upon (and contributes back to) the infrastructure created by others. BTW, if you go to NLM website, their license even has a form of reciprocity.

It’s yet another reminder to the GPLniks and others who believe that compulsory sharing is the answer to all the world’s problems. Take embedded Linux. Even if you can force people to share changes, that doesn’t mean that those changes will be used: it took several years to get essential embedded Linux features incorporated into the mainstream kernel. For more almost 15 years, the various BSD variants have been (without compulsion) sharing their respective code, but still pursuing separate projects — a canonical example of the exaggerated fear of forking held by many GPLniks.

Sometimes forking is justifiable, if, for example different efforts have irreconcilably different goals. A better choice than forking would be a modular design that allows meeting goals via incremental improvements rather than re-implementation (a pet peeve of mine as a software engineer and manager for more than 25 years). In other cases, “duplicative” investment harnesses competition as a way to choose the best solution from a range of possibilities.

But in many cases, it’s merely pride — i.e. NIH (Not Invented Here) — that leads to forking. Fortunately for medical research, the other NIH (National Institutes of Health) directly or indirectly fund the bulk share of U.S. public research. So if the NIH says “no” to NIH — and yes to cumulative innovation — then there’s hope for at least one sector to channel resources towards areas that do some good.

Technorati Tags: cumulative innovation, embedded Linux, GPL, infrastructure, medicine

Enforcing the GPL on Embedded Linux

Presumably by now everyone knows about the GPL and (depending on who you ask) its reciprocal aka “viral” properties. In the past, to avoid being a propagandist for either side I’ve called this “compulsory sharing” although the reality is that no shorthand description will make everyone happy.

To me, the remarkable thing has been how little enforcement there has been of the GPL on Linux (as opposed to dual license sponsored projects like MySQL). Maybe it's because those Linux proponents promoting Linux adoption don't want to discourage adoption. Or because of the legally unresolved question as to whether linking constitutes a derivative work. Or perhaps it’s because (for server and desktop use) there's the fig leaf of doing separate installs — shipping a CD with a Linux install and (say) a proprietary application, which are thus installed separately and thus the application doesn't fall under the “work based on the Program” clause of the GPLv2.

No such fig leaf exists if you have a WiFi router or a DVD player or a cellphone that uses embedded Linux. When I first started researching embedded Linux, one of the embedded BSD vendors argued that this made the more mature and non-GPL BSD operating system more suitable for embedded use.

This week Cisco admitted to violating the GPL on its iPhone (the one no one’s buying, not to be confused with the much-hyped Apple vaporware). They didn't volunteer it, but had to be prodded by someone who reverse-engineered the firmware and figured it out. This sort of GPL violation is probably pretty common, and obviously a big company like Cisco is an attractive target, but there were two interesting points. One is that the the inquisitive engineer was from the formal GPL Violations Project. The other was that the alleged violation was over Cisco not disclosing its own software, rather than over modifications to the Linux software (which would also be violations of the LGPL, MPL, EPL, etc. etc.).

Such disclosure of one’s own software is exactly the unresolved legal question that Larry Rosen (and others) have been pointing out with the Free Software Foundation's interpretation of “derivative work.” It could have huge implications for the many mobile phone manufacturers who are today shipping Linux-phones with unshared proprietary modifications.

If such enforcement becomes common, then it is going to change the nature of innovation in segments that use embedded Linux, forcing them to become more open in their innovation practices. Some would choose to make sharing a virtue and to actively collaborate, while others might decide the cost of sharing is not worth the incremental value of Linux over non-GPL alternatives. On the other hand, if the current regime of sporadic ad hoc enforcement continues, then it isn't going to serve as a deterrent for most vendors, and lots of little schlocky little companies are going to design business plans assuming they can fly under the radar and not get caught.

It would be helpful for all concerned if there a test case that told us what the law actually is. Of course, if the GPL were tested in a US court, it’s possible it could lose, which could account for the lack of a test case.