Softpanorama Copyleft Problems Bulletin, 2002

Linux Today - MySQL AB and Nusphere Corporation Announce Settlement

MySQL AB and Nusphere Corporation Announce Settlement
Nov 8, 2002, 17 :30 UTC (3 Talkback[s]) (3836 reads)

MySQL AB and NuSphere Corporation have announced a settlement of the dispute between the two companies regarding use of the MySQL trademarks, copyrights, and compliance with the GNU General Public License (GPL).

The settlement resolves all outstanding issues between the two companies including ownership and use of trademarks and domain names and assignment to MySQL AB of copyrights for all NuSphere contributions to the MySQL program, and MySQL AB has issued a letter to NuSphere Corporation verifying GPL compliance.

"We are happy to resolve this dispute," said Olivier Beutels, Sales Executive, Northern Europe, MySQL AB. "These past months of discussion with NuSphere regarding trademark rights and GPL issues have confirmed for us all that open source software can flourish free under the GPL license and commercially when the situation merits it."

"We are pleased to reach this amicable settlement and resolve the issues between the two companies," said Dmitri Dmitrienko, General Manager Europe, NuSphere Corporation. "We look forward to getting back to the normal run of business and plan to continue shipping the MySQL database in the NuSphere Technology Platform, and remain focused on our flagship product."

ESR Invited To Advise USPTO

"Hundreds of Thousands of Developers" my ass (Score:5) by MaineCoon (12585) on Monday June 26, @05:57AM (#975993) (http://avp.dhs.org/)

Personally, I believe this line to be pure bull - not only in the Mac community, but also in the Linux community. I know many people who started using Linux, and couldn't write, without help, a single, simple, syntax-error-free line of C code. Now that may sound very harsh against Linux users - and it is very well meant to be. All in all, the technical competence of most Linux users IS above average. But that doesn't mean that they all have the competence of commercial quality programmers, or even mediocre programmers. I doubt the majority of them could fix a simple buffer overflow bug given adequate debugging information that points the bug out directly. The claim that there are "40,000" contributors to "Linux" is very misleading. First off, Linux is more than the kernel. It is all the programs that it takes advantage of or requires to get the job done. Linux would be NOWHERE without programs like 'make', 'gcc', 'gdb', and all those similar tools. However, those tools WOULD exist without Linux. So, that number (which is pure estimate on the part of anyone claiming it as fact anyways) most likely includes the developers of all the programs that Linux takes advantage of... and in this case, that is like saying a printing company (Which can be run by a handful of people - a manager, a couple secretaries, a couple graphic artists, and a few printing press operators) employees "hundreds of people", by counting the foresting company, the people that operate the paper-making machines, and the people who produce the ink. IF, on the other hand, said number was restricted to the heart of Linux - for TRUE "Linux" is nothing more than the KERNEL - I wouldn't be surprised if, over the course of Linux's 8+ years of evolution, 4,000 (not 40,000) people have contributed something to the source code for some program for some platform or another - but even then I'm wondering how many of those contributions were very minor ones - such as a bug fix - and how many contributions overlapped. How many people provided moderate (more than a few dozen lines of code) contributions, and how many provided SIGNIFICANT contributions (on the lines of a few hundred or thousand lines). I'd guess more along the lines of 400 and 40, respectively. And how many Linux kernel contributors are well known by any kernel hacker? I think the number falls around 4 (to 8). In the end, the true core work of a project is done by just a few people (scaled to the size of the project, of course). While they may take advantage of existing libraries (such as a PNG or JPEG library, ZLIB compression, a communications architecture, or some such), that does not truly increase the size of the development team - that actually gives them less of an excuse to have large amounts of people. You can't claim the authors of these libraries on your dev team (but giving them credit for their work and it's use in the project is something else entirely different). And finally, what if the project is commercial? The problem these days is that Free Software (Free as in Freedom of Speech/Open Source) is equated these days with Free Software (Free as in Free "Beer"/No Cost). This is a very dangerous equation that is being made, and even promoted by so-called experts such as Richard M. Stallman. Eric S. Raymond has a clearer view, but it is still distorted by the belief that everything can and should be source-available. In many cases, especially Games, this option isn't available while the product is still commercially viable. Hence why Doom and Quake were not Open Sourced until years after they were off the shelves and replaced by better products (in the cases of Doom and Quake, 2 generations of products later). - Chris Jacobson (MaineCoon)

[PDF]Virtual Organization Design-Lessons From the Open Source Movement
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[PDF]Open Source Software Development and the Public Sphere: ...
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Open Source Software Development Paper

2.b.i. The “Comedy of the Commons” (Raymond 2001, 154)

            Garret Hardin’s concept of the tragedy of the commons is fundamental to most economic thinking.  The idea that a free resource lacks sustainability has been proven throughout history with the example of the English commons, clean air, and fish in the open seas.  Things are different today when we are dealing with the ephemeral.  Unlike grass, air, and fish, information (in this case written code) has no inherent dissipation of value the more people that use it.  Put simply, while fishing the seas clean deprives everyone else of fish, having a copy of someone’s software does not leave her any worse off in the same sense.  In fact, in the case of Open Source, it often leaves individuals better off. 

            There are actual concrete costs in the development in software.  People generally do not work without some form of compensation and firms that employ programmers expect to get benefits from the code that their developers create.  “In a complex setting, the self-developer is hardly distinguishable from the commercial software firm—the agent’s own consumption value is now a very small part of the overall calculation.  For this reason, I do not treat self-development separately” (Bessen 2001, 20).  For all intensive purposes, in terms of the economic analysis at this point, firms and individual developers are one and the same.  In this case, the answer to how individuals and firms can benefit from letting go of their intellectual property lies in a rethinking of how the software industry works. 

            “Part of the Answer lies in the fact that people don’t merely need solutions, they need solutions on time” (Raymond 2001, 125; emphasis author’s).  What Raymond means is that people cannot necessarily wait for a vendor to provide a solution to whatever problem they may be having.  Finding a bug in a Microsoft product, such as IIS (their web serving software), is a fundamentally different experience than finding one in a comparable open source product like Apache would be.  The difference lies in that finding a bug in IIS, would require Microsoft to fix it.  This could take an indeterminable amount of time.  However, in an open source product, it can be fixed now.  It is not just important that the solution be had, but if the problem is important enough, the problem can be solved immediately.   “If the payoff from fixing a bug or adding a feature is sufficient to any potential contributor, that person will dive in and do it (at which point the fact that everyone else is a free rider is irrelevant” (ibid).  

            This explains why a developer would work on an open source project, but does not explain why these developers give their code away freely.  Why there may be little to no costs involved in giving the code away, there does not at first appear to be an impetus to do such a thing.  Developers can actually profit from giving away code freely. 

Suppose I write a fix for an irritating bug, and suppose many people realize the fix has money value; how do I collect from all those people? … It may be more to the point that this value is not merely hard to capture, in the general case it’s hard to even assign.  …  It would take a superbeing, both able to evaluate the functional worth of patches and trusted to set prices accordingly, to lubricate trade. …  Unfortunately, there’s a serious superbeing shortage, so patch author J. Random Hacker is left with two choices: sit on the code, or throw it into the pool for free.  (Raymond 2001, 126)

            The idea that firms give away intellectual property that they could not profit from is nothing new.  It has existed for many years and has been known to profit in the long term.  Harhoff, Henkel, and von Hippel give us “four incentives which could induce user-innovators to freely reveal their innovations:” (Harhoff, et. al. 2000, 1)

a) Inducing manufacturer improvements

By freely revealing an innovative product or process, a user makes it possible for manufacturers to adopt that innovation and improve upon it.  …

b) Setting a standard advantageous to the user innovator

By freely revealing an innovation, a user makes it possible for other users to adopt it as their solution as well.  This adoption as a “standard” can be beneficial to the user-innovator if his innovation contains imbedded features particularly beneficial to that user … Not that being first to reveal a given type of innovation increases a user’s chances of having his innovation widely adopted, other things being equal.

c) Reciprocity and reputation effects

By revealing an innovation, the innovator may create or discharge “generalized reciprocity” obligations … He may also reap a gain in reputation

d) Low rivalry conditions

When competition between users is low … the revealing user does not suffer as a consequence of the advantages to the other users.  This is not so much of an incentive as absence of a disincentive.  (Harhoff, et. al. 2000, 2)

            These are all important issues in the development in open source.  I will flesh out only reasons ‘a’ and ‘b’ here for the sake of brevity, but also I believe that ‘d’ is similar to that which I have discussed above and ‘c’ will be discussed later in terms of business theory. 

            Inducing of manufacturer improvements is hard to translate directly into a paradigm that often has no manufacturer in the traditional sense.  There are still many parallels that can be drawn.  Perhaps the easiest one would be with the development of the Linux kernel.  The very idea that it is constantly improving would lead one to improve it further if she found a bug.  Fixing one bug could cause others to find further bugs and a user who knows that further improvements are coming along would be more likely to contribute to such a project.  Another example could be of Fetchmail, an open source mail client for Unix machines.  Raymond describes how he started writing patches for and eventually took over an existing project and each time more patches came in and Fetchmail became a powerful and popular piece of software thanks in large part to the continuing innovations (Raymond 2001, 19-63).  This is something of a snowball effect.  In essence each time a contributor adds a new feature or fixes an existing problem; it causes more features and fixes to come down the pike. 

            Setting a standard advantageous to the user is also an important concept.  Phenomena like the network effect, which derive from having a single standard, contribute greatly to the private support of Linux.  IBM benefits from having an open standard like Linux or Apache.  Accepting and promoting these standards allows IBM to focus more on improving its hardware line while setting a software paradigm that is already gaining acceptance.  This gives a firm, such as IBM, a jump start on the competition in these fields as it innovates and standardizes. 

            There is another advantage in setting a standard.  In fixing a bug, for instance, there are inherent costs in not distributing it.  In open source, one of the fundamental philosophies is that of “release early, release often” (Raymond 2001, 28).  This leads to new versions of a user’s software to come out on a frequent basis.  Each time that the new software is released, the user would have to re-integrate the code with the new release.  This is a costly practice.  Each time, the user would have to go back through the code and is likely going to have to edit the patch in order to make sure that the program works and that the previous problems are fixed all over again each time (Ibid, 126).  This would be the equivalent of replacing a washer somewhere in the middle of all the pipe works in a building each time the water filter is replaced.  It is unnecessary, it is time consuming, and it is often difficult to do. 

            Even non-contributing users can have an effect as well.  There is the concept of evangelization and users can contribute in other ways.  Users who do not contribute to the development of open source projects contribute in their simple use.  One could argue that by not contributing money to closed source software projects, i.e. not purchasing products like Microsoft Windows, you are in essence giving the free alternatives a competitive advantage.  Users of open source are also its biggest fans.  A user of open source is likely to “spread the good word” of open source and convince others to join up.  Many of these other users may contribute donations to organizations like the FSF or could hire firms such as IBM or Red Hat to assist in using open source software at an individual or enterprise level.  While these may not be a direct benefit of a free-riding user, these externalities can outweigh the minimal costs of distributing software. 

**** Why you should use a BSD-style license  - a very interesting and unorthodox paper

This document makes a case for using a BSD-style license for software and data resulting from open research; specifically it recommends using a BSD-style license in place of the GPL. It can also be read as a BSD versus GPL Open Source License introduction and summary. I am not an expert in this area, but about the fifth time I found myself writing to explaining ramifications of current open source I decided to attempt to consolidate my efforts. My experience in ongoing arguments in the Federal civil service in the 1970's over the merits of in-house, contract, off-the-shelf, public domain, and government-developed ``open source'' software may contribute to a dreary aversion to this subject.

*** OSNews.com - Exploring the Future of Computing -- a couple of interesting comments in a usual garbage...

	Amen.
	By Solar (IP: 212.149.48.---) - Posted on 2002-05-14 07:48:57
> Most of the important innovations happened 20 years ago. Amen that, brother. Because since then, the "innovative" people have flocked around a GPLed Unix descendant, claiming it to be the end-all, be-all to all computing woes. (Yes, I know, I'm exagerating, but so is the other camp...) GPL (and to a lesser extend BSD) have their weaknesses, but instead of admitting it and trying to do something to counter the effects (inconsistent and uncomfortable user interfaces to name only one), many actually consider it a "feature"... Just to avoid (too much) flaming, the other camp doesn't fare any better: trying to squeeze the utmost in profit out of the customer, while stiff-arming the "competition" and turning a blind eye towards the s***load of legacy that has build up in the process... But when people step up trying to offer a *really* innovative, alternative approach, especially the Linux community cries rape and murder, why oh why don't you join the Linux hype... as many an "alternative" OS visionaire can testify. I could not believe the sincerity with which people approached me when I kicked lose my OS project, telling me "if your OS isn't build on Unix, it will suck - Unix is so brilliant on everything"... so much for innovation...

 

	Sorry...
	By Solar (IP: 212.149.48.---) - Posted on 2002-05-14 07:55:50
Sorry I went a little bit OT in that post... but fact is, we will have a hard time in *our* project *because* of the popularity of the GPL. If we want to get anywhere anytime soon, we will have to "canibalize" other Open Source projects. Due to the GPL, we must take utmost care so that we can export an interface that is *not* GPL, but LGPL / BSD - because, like it or not, to be a *real* success you need the companies' support, and to attract them "GPL" is the wrongest thing you could say. I think the GPL has done much to Open Source. But I also think that the GPL is a bad choice if you are working on a bigger scope than implementing yet another MP3 player. Even the LGPL has some tricky parts in it...

 

	.
	By DavidGentle (IP: 213.1.61.---) - Posted on 2002-05-14 20:53:19
Does your OS ues object orientation networking and gui's? what about threads? Those are the sort of innovations I'm talking about. The only thing I can think of that isn't 20 years old is aspect oriented progrsming and the only implementation of that I know about is an (open sourced) version of java. Everything just seems to take the same few ideas and recombine them. Which is okay. But not innovation.

 

	my my
	By JackDaddy (IP: ---.rdu.bellsouth.net) - Posted on 2002-05-15 05:13:19
... ... ... He must have covered 5000 points in the 3 articles. For what its worth, it all comes down to whether or not you or your company are going to use code written by someone else. If you are not going to use someone elses code in one of your projects then it doesn't matter whether you like BSD or GPL licenses. Same goes if you just use the software. If on the other hand you or your company plan on using someone elses code in a commercial product then you have to make some choices. For all programmers that feel they could get rich if only Linux hadn't shown up, its time to take a good hard look in the mirror. You will have to stick to stealing BSD code for your own private gain or hire programmers and make money the hard way. EARN IT. Please do not let Microsoft turn this into a battle between open source licenses. What does the open source community care what microsoft thinks about its licenses? To hell with 'em. If Microsoft feels that $4,000,000,000 is not enough for R&D then maybe they should shake loose some of that wad of cash they have stored up but please do not whine about the difficulties of using GPL code in commercial products. If you feel there are no innovations comming out of GPL code then you will not be inclined to use GPL code in a commercial product. Problem solved. If you feel that software developed using federal funding (our tax dollars) should later be sold back to the public for a profit, then maybe you would not mind sending major commercial software companies a little stipend every year to save time instead of filling out tax forms. Maybe the IRS could add a little box on our tax forms right under 'president fund' or 'plant a tree fund'. say for example the 'buy Bill Gates a new wing on his house fund' or 'Send Larry Ellison on a round the world cruise fund' The beauty of open source is that millions of people around the planet have the source code for thousands of projects in their hands. Sounds a little pie in the sky but due to this fact these projects will never die due to a bad business plan or a down economy or through obsolescence. The source code.is freely available. Even if 90% percent of the public can't do anything with the source, the other 10% will be able to carry on. Commercial software companies on the other hand seem to think that THEIR source code is worth millions ONLY if it is kept secret. As if all of its value would vanish like a puff of smoke if it was taken out of its vault and exposed to sunlight. rotfl ---- ps Everybody chip in a dollar to save poor old SOLARs liittle OS project. He just can't figure out whose code he is going to have to steal to make his project work. Oh and don't worry about the OS market. Its wide open.

 

Linux Today - O'Reilly Vanishing Features of the 2.6 Kernel is this IBM's "bait and switch" style political move or resonable technical consideration ?

Article:		Vanishing Features of the 2.6 Kernel
Subject:		Congratulations -- Linux is 6 years late
Date:		2002-12-21 00:16:20
From:		anonymous
Wow, Linux finally has kernel-mode HTTP. NT/IIS has had this for four years, and it is available to any developer (fully documented). It's not even restricted to HTTP -- you can move FTP data in k-mode, etc. Also, NT has had zero-copy TCP/IP and UDP/IP from NT 4.0 on -- welcome to 1996, guys. NT also has an extremely open, well-documented, extensible driver interface. No GPL restrictions. Why is Linux shooting itself in the foot? Why insult & restrict the people who are SUPPORTING your platform -- device driver developers! You're just killing one of the few advantages that Linux has (or, soon, "had").

Article:		Vanishing Features of the 2.6 Kernel
Subject:		Arrogance in action
Date:		2002-12-17 07:53:57
From:		anonymous
Remember when the FUD-o-matics at M$ said that the GPL is a "viral license"? Well, this is exactly the thing they were talking about. What are you all thinking? Sure, I can see that anything provided with the stock kernel should be open sourced (GPL, BSD, whatever). Why do you care about the rest? Leave my freedom be. As a driver developer I am in the situation of trying to justify the time I spend getting my company's hardware to work under Linux. The simple choice is closed source driver or no driver. The Linux kernel developers are *consistently* saying they would prefer nothing. Keep it up and that's what you will get...nothing. No driver development, no apps being ported, no support, and no one in the business world will really care. What you people are doing is just like what M$ did in the 80's and 90's. Give people a good, flexible, powerful alternative to the current offerings. Then once you have consolidated your power force everyone to do things your way. That doesn't sound "free" to me...hell, it doesn't even sound ethical.

Article:		Vanishing Features of the 2.6 Kernel
Subject:		Push the vendor, kill the independent developer
Date:		2002-12-16 23:47:49
From:		anonymous
Vendors may respond to this push towards GPL modules, but independent developers who put their own money and time into providing a driver for a certain piece of hardware for Linux who comply with the NDA set by the hardware vendor can only stop their effort and count their losses if this move continues. I run a philips webcam and this driver makes the kernel 'tainted'. Reading the comment of the author about this move makes it clear that he cannot make a GPL module (see http://www.smcc.demon.nl/webcam/tainting.html) because of the NDA. So 'more GPL kernel' means 'end of driver'.

Article:		Vanishing Features of the 2.6 Kernel
Subject:		syscall table text is bollocks
Date:		2002-12-17 03:00:22
From:		anonymous
the export was removed because it was actually impossible to use it correct and racefree. Especially the combination of 2 modules overriding the same syscall is rather explosive (the example given is a clear way to do it wrong: the syscall table is restored to what it was before, however that might be a module that's no longer loader). Binary only modules were not an argument to remove it; rather nothing using it correctly (and the impossibility thereof) was. THAT is a technical consideration, not a political.

Article:		Vanishing Features of the 2.6 Kernel
Subject:		Binary-only modules
Date:		2002-12-17 03:34:49
From:		anonymous
From what I understand, nvidia would probably be amenable to make a completely GPL'ed module, but they *can't*. There's parts of it that are covered by technologies and patents they don't own, and don't have permission to release for free. They're doing the best they can, and a pretty good job of it. Deliberately cutting them off because they're not perfectly conforming to the One True Way Which You Shall Follow Or Be Assimilated For Resistance Is Futile is a very Microsoft way of doing business. What was that saying again Nietsche had about fighting monsters?

CLU - Subject: Binary modules ( Dec 19, 2002, 09:59:27 )

It has always been the vendors supplying device drivers for the operating system. Even for Windows NT and the rest, the number one problem for instability is drivers. MS managed to partially solve the problem by certification which make sure the drivers are more or less "tested". I have seen several vendors supplied drivers crashed NT immediately upon loading. And we are talking about a micro-kernel based OS. The problem with Linux drivers is not all that different, a buggy driver can surely crash the whole system - while it is binary-only, kernel developers cannot see what was going on, the only support is left up to the vendors. The real concern for the developers is the quality control. I am not saying the vendors should open up all the source code of the driver, however, what is consequece of losing your so-called "trade secrets"? The hardware is already proprietary, take for example graphics card that use a "particular" chipset. There are *plenty* makes and models that use the reference board and the same chipset by many vendors. One driver for this chipset pretty much drives all makes and model without much problem. If you are worrying about competitors, you already have them without exposing your "trade secrets". By releasing source code to the driver, what possible "trade secrets" will you be exposing? Unless...you have hidden APIs that give you an edge that only your secret driver knows about. Then, why the heck bother making a reference board and let 20 or so vendors to copy it and sell it? Is this some kind of ploy to "enlarge" your market and eliminate competitions? Now, for other devices like webcam, cd/dvd writers etc., why do the words "open source" immediately triggered a reaction that "it will expose or IP/trade secrets"? For crying out loud, many of these cdrw drives use a technology that is similar to Burn-proof(TM) to avoid their royalty. Where are their drivers now (while Burn-proof is supported in Linux)? The bottom line is money, whoever sell the most, make the most. The way I see it: opening up the driver source encourage people to buy, the market will see the device as "more compatible with everything else", just like the Realtek ethernet chip on every mainboard nowadays. At the moment I am in the market for 50 or so machines, whenever I see wierd chipset on the mainboard, or devices that use a rare chipset, I just go forward and find another one that use a well known chipset, preferably with a Linux driver, even some of them are going to be Windows box. Things get "well-known" because their behaviour is more predictable.

O'Reilly Network Binary-only drivers use wrappers these days

The kernel source tree is GPL, so any modifications that are made to it and released must also have their source released under the GPL.

The GCC compiler is also GPL. Modifications made to the compiler itself must be released with source, as with the Linux kernel. But, a program compiled with the GCC compiler can be released under any license. There is a legal barrier between the gcc compiler and its output. This is well-understood. This legal barrier also exists between the compiled program and any preexisting C libraries on the system, even though that program may make use of those libraries at runtime.

Most third-party kernel modules are compiled outside of the kernel source tree, and are output by the GCC compiler just like other C programs. The only link to the kernel comes at runtime, similar to C libraries. Therefore, it is accepted that a kernel module has this legal barrier, and can be released under any licence.

However, what happens when the kernel module uses API's that were intended to be part of the internal workings of the kernel, and were only exported because it was technically necessary? The system call table would be an example. It becomes a gray area in this case.

The GPL's legal barrier only applies to interfaces intentionally defined by the architecture of the software, such as an application's plugin mechanism, or a compiler's runtime library and linker. When a kernel module takes advantage of an unintended API such as the system call table, does the legal barrier still apply? This is a difficult question to answer.

For this reason, many binary-only drivers use GPL wrappers these days. The GPL wrapper is a kernel module that is open source, interfacing with the kernel without requiring for the legal barrier. The binary-only driver communicates solely by using the API presented by this wrapper, and not the kernel. The GPL only covers distribution of software, not its original authorship (the original author is always free to redistribute their software under a different licence). As both wrapper and binary-only driver are written and copyrighted by the same author, there is no licence conflict.

This seems to work well, and also has the advantage of allowing the wrapper module to be upgraded along with the kernel. When the kernel API changes, the wrapper module can be kept in sync, without needing to change the binary-only driver. Linux is known for speed and robustness because it is free to throw out old obsolete functionality that is no longer needed, something that would not be possible if a binary-only driver depended on that functionality.

I support the use of open source wrappers around binary-only drivers, and find it to be a reasonable compromise. Drivers that use this technique will not be hurt by API evolution such as this in the new 2.6 kernel.

O'Reilly Network Some comments from the Author

Vanishing Features of the 2.6 Kernel
Subject:	Some comments from the Author:
Date:	2002-12-17 08:17:57
From:	coop
I think (some) people are missing some points about binary modules, the GPL (and other open source licenses, I didn't mean to restrict things to GPL), and how Linux "operates." 1) Binary modules (in fact any modules) are restricted only to use a certain API. Normally device drivers do not have to monkey with basic kernel internals -- there is no reason a mouse driver has to manipulate scheduling or memory management for instance. You can't do this in closed source OS's either, such as Microsoft variants. If a device driver requires certain changes in the core kernel, then the hardware manufacturers should argue for those changes in the open. 2) A 'tainted' kernel is just as functional as an 'untainted' one. The only thing you don't get is free tech support from kernel developers. If you don't want to pay for it (by opening your license) why should you get help for free? 3) Anybody can patch the kernel to do anything they want (and even violate the GPL) as long as they don't distribute it (for money or for free). If it is for your own use, go ahead and enjoy. There are no Linux brain police going to stomp on you. 4) The technical problems of exporting system calls are not trivial (race conditions especially) but they are solvable. However, the will to solve them is not there because of licensing problems. 5) Linux is not run like Sun, Microsoft, or any other big company. And it never will be. People keep expecting "linux" to respond to customer complaints as if it had a responsibility to shareholders. It won't happen. 6) Those big companies often do make arbitrary changes to either content or licensing, ones that cost a lot of money to customers. These customers have few options often except to pay for costly 'upgrades' and changes. The changes in Linux are not arbitrary and all the arguments are out in the open. coop

The Register

Posted: 22/04/2002 at 16:19 GMT

Bill Gates took another shot at the Open Source question last week, and came up with some interesting new spin. Essentially, if your country standardises on Linux, then you're not going to have any IT jobs in your country, says Bill.

Gates was taking some pre-vetted (we presume) questions at last week's Government Leaders Conference in Seattle, and had been asked about the strengths and weaknesses associated with the adoption of Open Source in governments. He'd already taken a pop at this subject in his introduction, and given that the questions overall were fairly skewed in the direction of IT in developing countries, it does rather look like Microsoft had decided it was going to ram the message home hard to the people it sees as its future growth area.

Here's what he had to say in the keynote:

"One thing that we get people discussing with us a lot is how to create jobs around IT activity. And I think you will see some countries who really believe in the capitalistic approach; that is, that software should generate jobs, and government R&D should generate jobs, so that government R&D should be done on a basis that it can be commercialized.

"There's a faction against that, the so-called general GPL source license free software foundation, that says that these other countries other than the U.S. should devote R&D dollars in the so-called open approach, that means you can never commercialize that software. And it is an interesting choice to deny -- for a country to deny itself the benefits of these high-paying jobs and the kind of taxes that let countries fund their universities, and fund general research that then goes to renew that pool of commercial R&D. Clearly there's an ecosystem there that has worked extremely well in the United States, and has probably been the unique thing that has let that push forward. And there is now a recognition that it's really a question of policy of allowing the so-called capitalistic approach to win the day there."

Microsoft's view of the GPL as some kind of plague, virally infecting everything it touches, is well-known. The company has outlawed it in its licence agreements, described it as a cancer, communistic, un-American, and now here's Bill putting a spin on that last one for the benefit of the reps of developing economies attending GLC. You think it's attractive because it's cheap and flexible? Well, if you want to carry on living in the pre-IT age, just you go ahead.

In his answer, Bill kicks off by misunderstanding the point of open source, and then misrepresents the kind of source access Microsoft offers:

"Well, there are many different aspects here. One question is: Do you need the source code of an operating system as a user of that operating system? That is, should you be paying your people to study the intricacies of how the operating system is built and stuff like that? And the basic answer is no. That's something that for a few percent of the price of the PC you can buy a commercial operating system, where all the work of testing it, supporting it, delivering it, is included for a few percent of that price of the PC.

"For customers who want source code -- universities, large customers -- we provide that. But 90- some percent of that time, that's more a -- okay, it's nice, I have it, you know, should I ever need it. That's fair. So source availability is not the big issue. That's -- you have got source availability from us and others, and it's not much needed in any case."

Microsoft's source access programs are of course very limited, 'look but don't touch' affairs, but may have some utility in the sense that teams of college kids could wind up helping Microsoft figure out what some of the stuff actually does. Ex Intel VP Steve McGeady's testimony for the current trial for example describes an incident where a team from Intel and one from Microsoft had to expend considerable effort doing this to get Intel's Indeo to work. This was while they were on the same side.

But back at the podium, Bill is drawing a clear line between freedom and Marxist insurgents:

"Then you get to the issue of who is going to be the most innovative. You know, will it be capitalism, or will it be just people working at night? There's always been a free software world. And you should understand Microsoft thinks free software is a great thing. Software written in universities should be free software. But it shouldn't be GPL software. GPL software is like this thing called Linux, where you can never commercialize anything around it; that is, it always has to be free. And, you know, that's just a philosophy. Some said philosophy wasn't around much anymore, but it's still there. And so that's where we part company."

He does however have some good words to say about BSD, which seems to have been deemed by Microsoft to be the non-threatening alternative that can be allowed to live. Not least because it's esoteric enough for the transcribers of his speech to get it wrong every time:

"We say there should be an eco-system so something like VSB [BSD], which is a free form of UNIX, but it's not - -doesn't have this GPL with it, versus Linux which does -- there's a big contrast. A government can fund research work on BFP [BSD], UNIX, and still have commercial companies in their country start off around that type of work. You know, technology policies like biotech -- you only -- if your universities are doing work that can be commercialized, you will have IT jobs in your country. And if they are not, then fine, just say that farming is your thing, or whatever it is. All the taxes will be paid by those guys or something -- I don't know. And the farmers will go home at night and work on the source code. (Laughter.)"

Not exactly a ringing endorsement of BSD (ESB?), we accept, but Bill is kind of saying it's perfectly reasonable for governments and universities to work it and Unix. But we expect he'll be singing a different tune if they take him at his word.

Linux Today - Foreign Affairs Who Owns Ideas The War Over Global Intellectual Property

But in recent years public-health advocates, most notably the physicians group Medicins Sans Frontieres, have argued that stringent intellectual property protections make lifesaving medicine expensive or unavailable in the poorest countries. The inability of aids patients in Africa to obtain medications has put the vast international pharmaceutical industry on the defensive.

"Mickey Mouse was funny. This failure is heart wrenching. But it reveals a fundamental misunderstanding on the part of those who oppose intellectual property rights, even as they appear to be the more human and compassionate figures in the debate. Preventing the distribution of copycat drugs because of adherence to patent laws invariably means that some desperately ill patients will not have access to medicines they need. Yet the act of ignoring patents in the name of helping sick people curbs the incentive to develop new, lifesaving drugs in the future. The critics of intellectual property protection have forgotten Abraham Lincoln's statement that the patent system 'added the fuel of interest to the fire of genius.'

"Unfortunately, the public health field is not the only one in which the argument against the ownership of ideas is gaining ground. Today, governments around the globe are being asked to use only computer software that is available under an open-source license. The General Public License (GPL) is the most common license and is used for the most popular open-source software package, the Linux computer operating system. Although many Linux and open-source software users are content to co-exist with the for-profit world, the GPL can quickly suffocate intellectual property rights. The GPL allows anyone to distribute copies of open-source software for free or use the source code to create a derivative software program. But if anyone uses some of the Linux code in creating a derivative work or complementary program, that software, too, must be distributed for free and its source code made available to all. Adherents of the GPL refer to the system as 'copyleft,' fully understanding that it forces any proprietary software maker who wants to use code licensed under the GPL to surrender its intellectual property to the commons..."

Copyright Contradictions in Scholarly Publishing

Copyright Contradictions in Scholarly Publishing by John Willinsky
This paper examines contradictions in how copyright works with the publishing of scholarly journals. These contradictions have to do with the protection of the authors' interest and have become apparent with the rise of open access publishing as an alternative to the traditional commercial model of selling journal subscriptions. Authors may well be better served, as may the public which supports research, by open access journals because of its wider readership and early indications of greater scholarly impact. This paper reviews the specifics of publishers' contracts with editors and authors, as well as the larger spirit of copyright law in seeking to help scholars to better understand the consequences the choices they make between commercial and open access publishing models for the future of academic knowledge.

Linux Today - LinuxDevices.com Two Suggested Revisions of the GPL

Linux, the GPL, and a New Model for Software Innovation

"Increasingly, software is going 'open source,' with increasingly good results. Linux, the most visible of open-source software, is rapidly gaining ground in both embedded and server software markets, and even begins to make inroads on the desktop.

"This is particularly interesting given the peculiar licensing structure that governs it: the GNU General Public License (GPL). This license 'promises' cannibalization of intellectual property, but does not quite deliver on this promise, and so has attracted the affection of mammoth electronics companies (normally IP-protective) who see Linux as their key to the future. In turn, this most 'anti-IP' of licenses is arguably doing more to foster innovation than patents or copyrights ever have.

"In this whitepaper, Matt Asay (former Linux naysayer-turned-disciple) analyzes the GPL, picking apart what it means (and does not mean) for users, and whether it is enforceable. Asay also details how its terms inhibit and foster innovation, and why we should care. In this next generation of software, those who understand 'copyleft' licenses like the GPL will have the upper-hand, and will be best positioned to take on closed-source shops like Microsoft..."

Complete Story

Proposal Suggests Revision of GNU General Public License

"Matthew R. Harris, CEO of Embedix, Inc. (Lineo), has written a suggested revision of the GNU General Public License. Note that it is not an official version of the GNU General Public License, and is published at this time for informational purposes only. Harris, a stong proponent of the GPL, believes that in its current form it is difficult to understand and contains a number of ambiguities..."

Complete Story

Download xpdf (For both stories)

Related Stories:
NewsForge: Draft Version of RealNetworks' New Public Source License(Aug 02, 2002)
The Register: MS to Eradicate GPL, Hence Linux(Jun 26, 2002)
Distributed Computing Foundry: The Affero GPL: Closing the Distribution Loophole(May 22, 2002)
The Register: Gates: GPL Will Eat Your Economy, But BSD's Cool(Apr 23, 2002)
LinuxDevices: RTAI goes (Partly) GPL(Mar 26, 2002)
FSF Announces Support of the Affero GPL, First Copyleft License for Web(Mar 19, 2002)
Builder.com: The General Public License: It's not just about open source(Mar 11, 2002)

wine-license mailing list By Thread

• Webpage discussing GPL x BSD licensing... Roland (Tue May 14 2002 - 18:02:49 CDT)
  • Re: Webpage discussing GPL x BSD licensing... Guido Draheim (Wed May 15 2002 - 03:35:30 CDT)
    • Re: Webpage discussing GPL x BSD licensing... Roland (Wed May 15 2002 - 14:36:15 CDT)

• Re- WineX and the AFPL

• Re- wine-license digest, Vol 1 #100 - 7 msgs

• Dangerous back door in the LGPL

Linux Today - Australian IT Open Source Legal Warning

wine-license mailing list Re GPL vs. sweatshops (was Re Bias)

From: Deven T. Corzine ([email protected])
Date: Mon Jul 15 2002 - 09:26:44 CDT

Next message: Deven T. Corzine: "Re: Economics and the GPL"

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---

On Tue, 18 Jun 2002, Tony Lambregts wrote:

> GPL is accused of being "viral" because the designers of it did not want 
> GPL'd code used in proprietory products period. This aspect of the GPL 
> was designed as a posion pill (as a deterent) and it does the job it was 
> meant to do.  This license has the most protection for the community of 
> volunteers.

It's not the most protection for the community of volunteers who make their 
code freely available -- it's the most protection for the GPL community, 
which isn't the same thing.

The GPL's approach is basically "play the game by my rules or I'm going to 
take my ball and go home!"  This may be legitimate, but ultimatums like 
this are often viewed as immature and antisocial.  If such behavior is 
disdained on the playground, why should it be revered among professionals?

The GPL does a very good job of keeping GPL code from being incorporated 
into closed proprietary products.  It also limits the ability to integrate 
into other open projects, such as MPL-licensed ones.  This is undesirable
collateral damage, and detracts from the nominal goal of the GPL: the free 
and open sharing of code.  However, there's a good argument to be made that 
the nominal goal is secondary, and that the primary goal is actually to 
utterly destroy ALL closed proprietary software...

> X11/BSD has the least restrictions as far as business go but has the 
> least amount of protection for ensureing the community is compensated.

This is true -- it's clearly easy for a closed proprietary vendor to take 
unfair advantage of BSD/X11 code.  On the other hand, this vulnerability is 
exactly the reason why such vendors will be attracted to using the code, 
and if they depend on the sale value of their software, they certainly will 
never use GPL code.  At least if they use the BSD/X11 code, they might give 
back some non-strategic code, though surely not strategic code.  Does the 
competition of a closed product derived from open code outweigh the value 
of these possible non-strategic contributions?  It probably depends on the 
particular situation.

> Mozilla uses MPL and while there was some inital complaints about it not 
> being GPL it seems that things are working out ok for both netscape and 
> the open source community around Mozilla.

The major complaints about the MPL were from GPL zealots who believe that 
everything must be GPL to be "free", and Stallman, who demanded that the 
MPL change to become GPL-compatible -- despite the obvious solution that 
the GPL should be changed to be compatible with licenses (like the MPL) 
which are in the same spirit as the GPL...  (Stallman refuses because it 
would be too difficult to define and he's afraid of opening a loophole.)

> Each of these company's have found a business reason for supporting 
> these projects and the open source communities seem to be satisfied with 
> them.  These are win-win situations because both sides feel they are 
> getting what they want.  Even in the case of Apache it worked because 
> both sides are ok with the situation.

Keep in mind that Mozilla and OpenOffice were commercial products (Netscape 
and StarOffice) that were released freely as a calculated business risk to 
take down Microsoft.  AOL/Netscape and Sun aren't getting a direct return 
proportional to their costs involved, but instead they're betting that if 
they can weaken Microsoft's hold on the market, it will be worth the huge 
loss they've incurred by releasing that commercial code.

Apache is one of the few open projects contributed to by companies for its 
own sake -- and that's because it grew as a grassroots community effort 
among webmasters before management become cognizant of what was happening.  
By the time management realized what value was being added, it was already 
becoming clear that proprietizing their Apache version would be likely to 
cost them a lot because of the very active open project -- so unless their 
additions are extremely valuable, it makes business sense to keep the new 
code as free as the old, so it remains integrated.  (The only case I can 
think of, offhand, where it was compelling to make a proprietary fork was 
for SSL-enabled Apache, which is no longer a strategic advantage...)

> As far as I am concerned Wine could have chosen MPL/SISSL/LGLP/WineOrg 
> and I would have been OK with the result.  

I think any license choice is valid, but it's best to understand all the 
ramifications of the choice, as much as possible...

Deven

Re: Economics and the GPL

From: Deven T. Corzine ([email protected])
Date: Mon Jul 15 2002 - 09:39:55 CDT

Next message: Roland: "Re: GPL vs. sweatshops (was Re: Bias)"

• Previous message: Deven T. Corzine: "Re: GPL vs. sweatshops (was Re: Bias)"
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---

On Wed, 19 Jun 2002, Roland wrote:

> At 05:30 PM 6/19/02 -0400, Deven T. Corzine wrote:
> >On Wed, 19 Jun 2002, Roland wrote:
> >
> > > At 02:45 PM 6/19/02 -0400, Deven T. Corzine wrote:
> > > > > That's one way of looking at it.  Another is that it is using the 
> > > > > tools of oppression against the oppressor.
> > > >
> > > >But are you on a higher moral ground if you act like those you despise?
> > >
> > > He is not acting like those who he despises, he is merely using their
> > > tools. Sounds fair to me.
> >
> >He's not?  Hmm...  Software hoarding?  Check.  Embrace and extend?  Check.
> 
> Unlike proprietary software, GPLed software is free for everyone to use for 
> no charge. Plus you have the source to adapt/modify/improve.

Yes, it's free to use unmodified.  It's not free for everyone to adapt, 
modify or imprive the code -- only for the GPL community to do so.  (Well, 
technically there's a niche case of closed modifications which are used but 
never distributed, but that's a very special and limited case.)

Just because anyone can participate in the GPL community doesn't mean that 
the code is free to everyone.  If Microsoft can't incorporate GPL code into 
Windows, how can you say it's free to everyone?  Microsoft can distribute 
GPL code, sure, but they're not free to use it any way they choose.  Please 
don't claim the GPL is more free than it really is.  BSD/X11 licenses are 
much more free, because anyone can use them with very little limitation.

Now, I'm not saying that the GPL should allow Microsoft to use GPL code in 
Windows -- that's exactly what it's trying to prevent.  And whether or not 
it's the best means to accomplish the goal (and it's debatable), there's no 
reason why the GPL shouldn't be allowed to take this approach.  However, 
GPL advocates should be honest and admit that it's not really free for 
everyone to use, but only for the GPL community to use...

> Usually open source software will use open/official standards(for 
> file-formats etc...) so it enables everyone to participate...

This is a good thing, of course.  This happens because it's better to use 
an existing standard than to invent a proprietary format.  Since most open 
source programmers aren't looking to lock out others, there's very little 
incentive to invent proprietary formats.  (Unless it's for simplicity, in 
which case the format will probably still be documented and open.)

> So I see a lot of differences between proprietary and GPL.

Then you've got blinders on.  The GPL is just as proprietary as Microsoft.  
It's open proprietary software, but nonetheless proprietary.  Certainly, 
there is a big difference from closed proprietary software, but "closed" is 
the word to be demonized, if any -- not "proprietary".  Rail against closed 
software all you like, but it's hypocritical to rant about "proprietary" 
software without distinguishing open from closed while supporting the GPL.

> >I thought Microsoft and others were supposedly bad *because* they did these
> >things, not only because they don't distribute source?
> >
> >I guess the question is, do the ends justify the means?
> 
> Hmm, I think this question is really a bit off topic now :) (Due to its 
> generality)

Perhaps.  What else is new? :-)

Deven

LawMeme Legal Bricolage for a Technological Age - Open Season on Open Source in Australia Posted by Kim Weatherall on Tuesday, October 29 @ 19:31:32 EST

It seems that, periodically, someone in Australia raises the question: is the GPL enforceable?

One of Oz's newspapers, The Australian, have a new story, where they quote a lawyer from one of Australia's bigger firms, Minter Ellison, suggesting that there are doubts about GPL enforceability, and consequences of non-enforceability (Minters' (very) slightly more extended analysis is also online: here. There's some trickly little issues in here - and while some of the claims aired in The Australian article are just silly, there may be something to it, though I still doubt the world will fall apart...

First things first: - the Australian's article is about as general as it comes. - Minters' analysis is also aimed at (generating new) clients - so is also very general in its terms.

The other interesting thing about this story is that, in many cases, the issues it raises are common to all software - not just open source. Blaming it all on the GPL and open source is just plain wrong.

The summary of my views is this: legal issues for people involved in the open source community, building their own software for their own purposes and putting it out there to contribute to the public domain will continue to be - well, not that huge. The reason we're getting these concerns now is that businesses are in on the act. Either they want to make money through open source (distributing it, with warranties or without); or they want to use it - to save money. For these people, there are issues. Because they generally need more certainty - in reliability (who'd want to be in charge of a bank's computer system - esp if it went haywire?), and in having someone to blame if it does all go wrong (who'd want to be their supplier, if you couldn't limit liability). So, for these people, there certainly are legal issues. But we knew that, right?

So what of the claims?

1. "From a copyright point of view, developers are most at risk because they lose the ability to assert ownership."

Not correct. The statement is carefully worded but misleading, because it suggests that the writers of the software lose their copyright (indeed, that is how readers seem to be interpreting it - look at the 'Your Say' comments page on the article). Which, of course, they do not. Note the word "assert" though - I think the lawyer (committing the usual sin of "lawyer-speak") means that you can't "assert" copyright rights like the right to make copies, to make adaptations etc etc. Even then it's still misleading, because the GPL doesn't ever stop you distributing your own independent work as a separate work.

2. "The lack of a liability regime also meant the distributor was not liable for defects in the product, which may cause data loss or systems to crash"

Hardly news, and misleadingly suggests that this is not true of other software. 99.99999% of all software end user licenses have disclaimers. Further, the GPL specifically allows people to offer warranties, including offering warranties for a fee. Would be an issue for businesses wanting to install all open source, though.

3. "This could be a problem with employees, who could, for example, be using a piece of open-source software that they download from somewhere. Not understanding the implications of what they are doing, they could incorporate it into a program for their employer, which may then be distributed for a price and they could be in breach of the GPL"

Any employer who does not warn their employees against taking code from elsewhere and then incorporating it into software that the employer sells is laying themselves open not just to breaches of the GPL. It also means that if the employee uses material from proprietary software they'll be in trouble for copyright infringement.

4. Legal uncertainties surrounding open-source software were complicated in Australia because of the Trade Practices Act and state Fair Trading legislation"

Ah, here is where it gets all vague and wishy-washy. Unfortunately, it seems that they don't want to tell us just how things get complicated here.

The Trade Practices Act is the legislation in Australia that seeks to protect consumers (Part V of the Act). It contains things like warranties of merchantability/fitness for purpose that cannot be excluded by contract. These provisions, and the warranties they create, apply to all goods and services. They are not specific to software. There is caselaw in Australia on whether software is a "good" or a "service" but the summary is - it's not 100% clear. The basic warranty is that a good is of "merchantable quality" (s71). This basically means - fit for the purpose for which goods of that kind are commonly bought as is reasonable to expect having regard to any description applied to them, the price, and other relevant circumstances. With services, the warranty is that they are "reasonable fit for the prupose for which they are supplied" (s74).

Now, there are questions about how much the legislation applies to things that are given away, like open source software. I also think a court would hesitate to find that any particular "purpose" had been warranted in the case of software which is there for the taking and modification. The court would likely take into account the "description" of open source software, and the understanding that people have that it is a "work in progress". It is probably one area where courts are going to say - you act at your own risk.

Of course, if a party wants to provide open source software on a large scale in business, their customers are going to want some more certainty than that, possibly. But if they want to back it up with a warranty, that's allowed under the GPL.

5. "There is generally no warranty that the software does not infringe any third parties' intellectual property rights. This could expose the end user of the software to liability for intellectual property infringement"

This is a harder issue to dismiss. If programmer X puts some proprietary software into their work and distributes it under the GPL, then subsequent users might be liable for the infringement as well. But a couple of qualifications are worth noting. First, you have to find the infringer. Good luck there. Second, there would have to be a reproduction of a substantial part of the proprietary software in the distributed program. Substantial part, in Australia, is assessed according to the originality of the work as well as the quantity taken. So the bit incorporated would have to be significant. Third, Australian law also offers a defence of innocent infringement (s115(3)) where "defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright". The result of such a finding is that the plaintiff is "not entitled under this section to any damages".

other issues

Enforceability of online contracts is an ongoing drama (at least for legal academics) - in the states and here. For a recent analysis, see the Australian copyright Law Review Committee Report on Copyright and Contract (Chapter 5) (a report which, by the way, doesn't seem to have looked at viral contracts in any depth).

moral rights might be another issue - Australia has legislation (Copyright Act, Part IX) that prohibits, in essence, denigrating use of a work, or alterations that attack the integrity of a copyright work - meaning acts that consist of the material distortion of, or material alteration of a work, or anything else, which is "prejudicial to the author's honour or reputation" (s195AJ). But there are defences where the action is reasonable (s195AS).

So, in short - the article is a bit misleading, and a lot scare-mongering. There are definitely issues for the GPL in Australian law, but my reaction (without going through truly detailed legal analysis) is that at least many would be overcome in practice. The biggest issue is, of course, for companies wanting either (a) to make a lot of money out of distributing the stuff, or (b) save a lot of money by using it instead of Microsoft. For the former - they are in a position to price their product, right? And the people in category (b) can pay for the extra security - get someone else to provide warranties. If I were them, yes, I'd be getting some pretty good legal advice. and being careful where I got the software from. But isn't that always true? So it's complicated in law, that's right. But it ain't the end of the world for most programmers, methinks.

Who says paranoia doesn't pay off - Tech News - CNET.com

ZDNet Tech Update Platforms-OS - Assessing the risks of open source

"However, IT leaders are increasingly concerned with liability and security surrounding the use of open source. IT organizations must develop policies and procedures to aid in assessing the risk associated with all code utilized in the organization...

"Several risks are associated with using application software developed by others, such as copyrights and patents, liability, security, and quality. Commercial software brings a certain sense of safety by assigning specific rights, defining legal limits, and providing a named commercial entity that theoretically stands behind the code. When it comes to open source, the picture becomes murky. IT organizations (ITOs) must define rules of use based on where software is obtained and utilize software tools to evaluate third-party software.

Organizations must understand what rights have been assigned. When software is acquired, legal review of contracts and licenses is part of the normal process. This is an expense that must also be incurred with open source. However, accepting specific types of sources (for example, all software distributed under the Apache license) can limit the recurring cost for each new package from a site.

Linux Today - Politech CEI Blasts Linux as Unsuitable for Government, Business Use

"The NYT view has some gold. Competition is always good. And the Linux backers have hold of an important truth, which is that persuading a lot of smart people each to devote a small part of their time to an effort can produce impressive results. They are also right to think that opening up computer code to the eyes of the whole programming community can be extremely productive. Microsoft itself sees increasing virtue in this idea, and is developing shared source to open up code to scrutiny while the company keeps firm hold of the pen.

"But the NYT misses in some ways. First, none of this is free. Software is a complicated industrial product requiring continuing re-creation and support, and money to support it must come from somewhere. Linux programmers are not street people who sleep on steam grates so as to indulge their passion. They are supported, often handsomely, by universities and IT companies. Even this support is not sufficient to keep Linux going, and hardware companies, notably IBM, are now pouring billions into it. There is nothing wrong with this; IBM has good competitive reasons in that it wants to dish Sun and Microsoft. But the movement is not the folk song army depicted in the NYT..."

politechbot.com Competitive Enterprise Institute blasts open-source software

The most sacred example of open-source's success -- the popular Linux operating system now regarded as at least a credible threat to Windows -- remains difficult for anyone but specialists to use. So far, few critical major applications - word processors, spreadsheets, 3D games - run on Linux. Boasts of Linux's crashing less often than alternative operating systems matter little if few applications people can use run on it.

Use of Linux will probably expand dramatically - but the numberless open versions tweaked and Web-posted by hackers and hobbyists aren't the ultimate reason. Driving Linux's mass-market embrace today is the offering of a proprietary version called Red Hat -- and investment in Red Hat Linux by Intel and Netscape.

A dilemma for the open-source model is that its programmers aren't fundamentally answerable to anyone. Squishy product support won't cut it in the marketplace. Someone must be available to chew out and to sue when systems fail catastrophically, as happens occasionally.

The point here isn't to declare the open-source model "wrong." In free markets, we needn't embrace the open-source advocates' view indiscriminately, nor must we regard Microsoft's particular proprietary model as final. Free markets allow numerous experiments proceed in parallel. Some mix between the two approaches -- just like we enjoy today -- probably will remain ideal.

Like free love, open-source code is fun, but it's probably not a way to run the world. Somebody's got to step forward and take care of the babies.
Microsoft, for its part, accepts that responsibility, and that's one reason
why granting free access Microsoft's code isn't a rational or honest
response to the company's alleged abuses. Like most pop-critiques of the
profit motive, the open source doctrine is blind to its hypocrisy: for every
non-profit hacker, somebody must collect a paycheck to feed him and pay for
the computer.

Why I Reject the GPL

I was an advocate of the GPL until I read this comment on slashdot:

Who appointed Stallman God? In his own way he is just as bad as Bill Gates, for they are both trying to dictate the terms under which we can distribute the software we write, or use the software we use that has been written by others.

I reject both of them for trying to control what I do with the code I write. When I write something, I should have control under the provisions it is licensed under.

When I use software from others I have to make a choice about what license provisions I will agree to. These days I have a lot of choices. I like it that way.

I am perfectly capable of making my own decisions in this regard—and I cannot stomach the idea of others trying to make them for me.

From now on, I will be a BSD license advocate. I remember suspecting for some time that, although I appreciate the guarantee of the GPL that future work will be under the GPL, it is not a right of programmers to exert that control over future developers. RMS is wrong with respect to rights of users and developers. But then again, we always suspected he wasn't entirely all there.

I am a rational anarchist, as defined in The Moon is a Harsh Mistress. What this means, to me, is that as a user, I will ignore whatever the license agreement is for a piece of software if I wish. If I wish. As a developer, I can't do that. As a developer, I have to recognize the fact that I won't know if someone else uses my code. I might as well let them, and improve my relations with them as an individual.

Fuck you, Stallman. I find the concept of anyone having control over me repulsive, whether they be a suit, a legal system, or a strung out hippie. Have a nice day.

Scripting News

... ... ...

Brett Glass keeps bringing the discussion back to the evils of Richard Stallman and the GPL. I think it's more complicated. I couldn't support the GPL for MacBird because it's a poison pill for a person such as myself who makes a mixture of commercial and open source software. When I give away code, I want to give it away with no strings attached, for me or for anyone else. And when I put a price on software that's because I want to be paid for it. I've always done both open source and commercial software. To me it's an honor to get paid for something I create. I'm like a musical artist that way.

Then the subject swung around to why the open source "movement" gained traction. For some reason this discussion happened off the DG in email. I'd like to give my thoughts some public air.

Stallman's popularity is a result of what Microsoft did when the Web became a juggernaut. They attacked. Everything was a threat to Microsoft. They attacked relentlessly. They forced a choice. Become a captive Microsoft developer, or.. or what?

Developers legitimately wanted WORA. Microsoft thwarted them. This was their mistake, focusing on Sun, and blowing off the developers. I expected Gates to get this, but he didn't. They call him a "developer's developer." Bullshit. Now MS is left with developers who are such pussies they could overlook MS's "company town" attitude about developers. The ones with balls went to Java, or open source, or are drifting around aimlessly waiting for the industry to restart.

So don't say Stallman created this mess. No one would have cared if Microsoft hadn't forced a decision. If they had been more relaxed about the Web, let Netscape drift, and stay on the side of developers, Microsoft would have cleaned up and we wouldn't be talking about Stallman or open source now. My opinion of course. (And this isn't just good hindsight, it's what I begged Microsoft to do, publicly, starting in 1995.)

Talking with Paul Everitt yesterday, the Zope guy, I said "We've acknowledged open source, now it's time to have balance." Let's have the open source developers acknowledge that it's a multi-colored world, that there are Macs and Windows and Linux, and open source and commercial software, and all levels of quality therein.

Now, a lot of open source developers wonder what the big deal is. "We already acknowledge you," they say. They are our friends, and they tell us that most open source developers agree. That's cool! But the PR noise about open source is not in agreement with this message, and the users, press, and investors hear the PR message, and you wouldn't believe the kind of pressure it puts on us. When the initial rush of hype about open source came a couple of years ago, while all the PR leaders were basking in the glory, we were getting decimated. For us it was esp bitter, it came just as we were turning Frontier into a commercial product after having given it away for years, we were trying to get onto solid ground. Had we not been able to do this, there would be no Manila, no XML-RPC, probably no SOAP or RSS either. Or Radio UserLand, or the World Outline, or whatever else we come up with next. The open source hype made it much harder than it had to be.

BTW, to the open source developers, all our innovations are without patents. We've been blazing new trails on a regular basis for the last few years, esp in the last few weeks, and documenting our work. Anyone who files patents in these areas, and you can be sure that's happening now, will find a trail of prior art blocking their greed.

During the heat of the open source hype, every day our users would tell us Eric Raymond's bullshit about our intentions. They would demand that we release our source code, as if that had anything to do with getting them what they wanted. We were undermined. At the same time Bill Gates was fueling the fire by picking on Java developers, undermining them as we were being undermined by the open source PR. The opportunists on the open source side continued to hurl bricks at all commercial developers, as if we were all self-centered bastards like Gates. I'm sure they knew better, but it worked for them. Meanwhile open source developers, people much like ourselves, ignored the hype, but we couldn't. It was so in our face it couldn't be ignored.

Now, I've tried to be an official open source developer. I gave away a beautiful program that would help the Linux guys compete with the Mac. It's gone nowhere. The leaders want to take the shortcut, instead of linking up with the Mac, they want to erase it. These are not our friends. They do unfriendly Bill Gates-like things. Well fuck that shit. Let's create a programmer's club, and let's help each other.

And to Bill Gates, I'm totally happy to meet to talk with you too. Let's get the software industry going again. It'll be good for all of us. I'm willing to do my part, but you have to do yours. You hurt all of us by attacking the Web so viciously. The right thing to do is to repair the damage you caused.

End of rant, for now.

On O'Reilly 

I've been very hard on O'Reilly. I didn't realize how hard.

Re-reading my message to Brian Behlendorf, I see it differently from how I saw it then.

A statement of friendship must not have any bitterness in it.

I also understand that O'Reilly is a high-quality company. And they have their own point of view, which is certainly a valid one.

I had similar trouble with Apple, and eventually came to understand their point of view. (They hated the Web because it undermined everything they stood for. I didn't understand this, while I was saying publicly that they didn't get the Web, they did get the Web, they just didn't like it!)

Apple also controlled the Macintosh developer community. This was a choice of Apple's and the Macintosh developer community. So when I say O'Reilly is running a captive developer community, the same applies. You have to be a friend of O'Reilly's to speak at their developer conference. I am not a friend of O'Reilly's. And the developers who attend the conference must know that, even if not at a conscious level. Their conference works, and will continue to work, whether or not dissenting views are embraced.

I have wanted to be a friend of O'Reilly's, because we stand for many of the same things. First and foremost is technical excellence. That's also, by the way, the bond we have with Microsoft. Even though they play a piggish game with the rest of the industry, underneath it, there's a twinkle in the eye of Microsoft's technical culture. O'Reilly has that twinkle too.

Tim has also personally come out against software patents, but the follow-through has been unsatisfying, given the urgent and escalating threat to intellectual freedom for software developers. Open source does not trump patents. The freeze in MP3-related technology is not just coming from music industry, it's also coming from a patent held by a German company who is ruthlessly enforcing it.
 

nettime The case for lagom copyright

Tim O'Reilly tried to press the issue in a couple of articles and seemed convinced that Stallman and his colleague Kuhn was for GNU GPL legislation. O'Reilly suggested a system where developers themselves choose the rules under which they release software, not very much different from the system in effect today. Eric S Raymond wrote a satire to prove how wrong Stallman and Kuhn would be to suggest a GNU GPL law. Raymond posed Stallman and Kuhn the question whether if they could get a law passed making proprietary licenses illegal, would they? Stallman and Kuhn slightly tilted towards the legislative point of view, but never gave a straight answer whether they were for or against a codified GNU GPL. Stallman and Kuhn wrote: "We believe, though, that with time, as more and more users realize that code is law, and come to feel that they too deserve freedom, they will see the importance of the freedoms we stand for -- just as more and more users have come to appreciate

... ... ...

That much said, Lessig is very reluctant to make open code a law. In The Future of Ideas, Lessig states that the government should "encourage" the development of open code. Such "encouragement" should not be coercive. According to Lessig there is no reason to ban or punish proprietary providers...

... ... ...

What we need is balance. In Sweden we have one word that I have not encountered outside of Sweden. The word is "lagom" and it defines the space between too much and too little. What we need is lagom copyright protection for computer programs.
 

CIPR Final report The London-based Commission on Intellectual Property Rights final report on intellectual property law, especially with regard to developing countries.

 "Where suppliers of digital information or software attempt to restrict 'fair use' rights by contract provisions associated with the distribution of digital material, the relevant contract provision may be treated as void. Where the same restriction is attempted through technological means, measures to defeat the technological means of protection in such circumstances should not be regarded as illegal."

GPL or BSD Yes LG #75 pretty weak paper from a guy who is "unaware of BSD software on a daily basis". And may be on weekly basis too. Nuff said ;-)

There seems to be 10 times the amount of BSD people who hate GPL. I imagine that is because Linux is tens time more popular, but I really don't know. If FreeBSD was ten times more popular then Linux, I imagine you would have 10 times more GPL guys moaning than the BSD guys. For me personally, I am unaware of BSD software on a daily basis, and so, I have no reason to voice my opinions actively. I suppose I really don't like people who complain about the other licenses for two reasons:

• They haven't thought through the situation carefully enough to realize there is nothing wrong with licenses.
• It reminds me of when I was a little younger making outrageous statements because I didn't think through problems. However, the older you get, the more boring you become, so making outrageous statements should still be a daily occurrence to prevent yourself from becoming an old fart, as long your statements are harmless.

Nuff said.

Linux Today - LinuxDevices.com Two Suggested Revisions of the GPL written for Professor Larry Lessig Stanford Law School April, 2002 (the content is clear, if know the professor ;-)

Contents The Digital Dilemma Intellectual Property in the Information Age Committee on Intellectual Property Rights and the Emerging Information Infrastructure Computer Science and Telecommunications Board Commission on Physical Sciences, Ma

Some Thoughts About Rights

In Galt's Speech, Rand stated that rights are "conditions of existence required by man's nature for his proper survival." (13) She also said that "without property rights, no other rights are possible."

GPL Legality Links Background on GPL Challenges

Legal Challenges to the GPL
Article from LinuxPlanet quoting FSF counsel, stating many GPL-challenge cases have been settled out of court.

From the article: "If you wait another couple of months I wouldn't be surprised if you see either a lawsuit or a voluntary agreement to comply entered into by a major international software house that has done exactly what you postulate, less in the 'embrace and extend' model than in the 'security through obscurity' model, which is another reason why those who build works on top of free software sometimes try not to disclose source," Moglen told me in an e-mail exchange dealing with the basic nature of the GPL, the licensing instrument of much if not most Linux-related software."

Very good article with a key quote from a Microsoft official. The Microsoft rep uses past tense when describing a legal test of the GPL, implying to careful readers that Microsoft is actually involved in questioning GPL validity right now.

From the article: "I'm not a lawyer; I'm not a license wonk. I did read through the GPL-I found it very confusing, and the biggest thing that concerned me about the GPL was it's never been challenged, that I know of, legally. I just really didn't want Microsoft to be the "test case." http://www.devx.com/premier/mgznarch/xml/2001/montgomeryinterview/montinterview-2.asp

Best GPL Legality White Papers- Good collection of thought provoking material
http://www.softpanorama.org/OSS/license_classification.shtml#Part%202:%20An%20Exercise%20in%20Enumeration%20of%20GPL%20Problems
http://www.linuxworld.com/linuxworld/lw-1999-09/lw-09-gnu.html
http://icfcst.kiev.ua/panorama/OSS/bsd_vs_gpl.shtml

General GPL Legality White Papers- decent background if you really want to dig in and learn more.
http://emoglen.law.columbia.edu/my_pubs/anarchism.html
http://www.sims.berkeley.edu/~pam/papers/clr_2b.html
http://www.softpanorama.org/OSS/license_classification.shtml
http://www.law.berkeley.edu/journals/btlj/articles/12_1/Merges/html/text.html

RFC Inclusion of An Anarchist FAQ

• To: [email protected]
• Subject: RFC: Inclusion of "An Anarchist FAQ"
• From: Ed Boraas <[email protected]>
• Date: Thu, 18 Mar 1999 01:16:03 -0500 (EST)
• Organization: http://www.ed.boraas.ca

I suppose I may as well comment before this turns into an all-out flamefest... :)

Those people who have objected to the inclusion of the Anarchist FAQ in
debian have raised some good points; at what point does a document merit
inclusion in debian? Are there strict criteria? Should it be of
specifically OS-related content, or do documents of political opinion fit
into the scheme? Originally, I thought that the anarchist FAQ, as a GPL'd
and very popular document, would be valuable in the distro. In fact, I'd
received requests from some people about deb-packaged versions of the FAQ.

I'm fully willing to remove this package from Debian if people feel
strongly enough about it. While the content may be of interest to many
geeks out there, it's probably true that it's not important enough to be
included with the OS proper.

One thing that I think would be very useful, however, would be some sort
of "Free Literature/Documentation Add-On CD" for debian -- somewhere where
we could package up the oodles of free texts out there without bloating
the distro further. If things like the Gutenberg texts are free enough,
I'm sure we'd have no problem finding 650 megs of texts.

In closing, though, I'd like to make a couple points about the FAQ. It is
a very extensive economic, social and political analysis of Anarchism
(libertarian socialism) which is written in a very academic and
professional manner. Also, Anarchism (contrary to the opinion of many a
packet kiddie) is not a theory of destruction, disorder, and such.
Anarchism is a theory for the positive reconstruction of society along
voluntarist and communitarian lines (think: debian as a society). Neither
Anarchism nor this FAQ have anything to do with violent or anti-social
acts. Also, the FAQ is a GPL'd document -- something i personally find
encouraging.

Anyway, how feasible to other people feel a "Free Texts Add-On" would be?
I for one would be willing to work to make this become reality, if others
think it's a good idea.

For now, I'm downgrading its priority to Extra. I'd encourage anyone who
wants to continue this thread to email me personally. Debian-devel is
stressed enough without another flamewar to deal with. Thanks.

for free software,
ed.

Anarchist Librarians Web - Against Intellectual Property

Another Word About Plagiarism

The Case for Minimal Protection of Intellectual Property Rights

The Cathedral and the Bazaar by Eric S. Raymond

Changing Copyright by Negativland

Copyright Law is Wrong

Is Corporate Research Funding Leading To Secrecy in Science?

Eldritch Press vs. the Digital Copyright Act

Foraging on Internet For Raw Materials

Implications of Genetic Research for Indigenous Peoples

Intellectual Value by Esther Dyson

The Internet and the Anti-net

Invention Or Contrivance? Biotechnology, Intellectual Property Rights & Regulation

Is Plagiarism Necessary?

Land-Speed-Trials: Winners and Losers in the Biotechnology Race

Life, Liberty and... the Pursuit of Copyright

Manifesto of the Tape-beatles c.1989

Negativland's Tenets Of Free Appropriation

Misleading News Coverage Concerning HGDP

Plagiarism from My Perspective

Read them and weep: Under the guise of protecting copyrights, measures threaten readers

Rhizome: detritus references

"Shiny, Aluminum, Plastic, and Digital"

Tracks of Freedom

Web Sites Critical of Intellectual Property
=================================

Against Intellectual Property

Applying Copyleft To Non-Software Information

Biotechnology, Intellectual Property Rights and Regulation

EFF Consortium for Free Expression

The Free Music Philosophy

Free Patents

Campaign dedicated to keeping software patents out of Europe.

Free Software Foundation

GrayDay.org

Indigenous Peoples Council on Biocolonialism

The Internet Software Consortium

Negativland - Intellectual Property Issues

OpenSource.org

Plagiarism Made Easy

Public Works

RTMark.com

LWN - Back Page

From: Leandro Dutra <[email protected]>
To: "'[email protected]'" <[email protected]>
Subject: Restrictively Unrestrictive
Date: Thu, 13 May 1999 11:59:26 -0300

	Re: your article at http://www.daemonnews.org/199905/gpl.html
	I won't try to refute any little point in your article first, but
your general, US "culture" conditioned, strictly "capitalist" viewpoint.

	It is easy, but not very honest, to call RMS a communist.  It shows
you no nothing about Communism, and little about RMS intentions.

	First of all, let me define a word you from US misuse: Liberalism.
Liberalism is an European concept about freedom to live under the laws,
freedom to enterprise, and keeping the state interference in private and
economical issues at a minimum.  What you from US call "Liberalism" is
called Leftism all over the world.

	Communism has two faces: one is the ideal, unrealistic goal of
communality, the idea that everything should belong to everyone.  You can
subscribe to this desire while still believing  Liberalism better for
practical reasons.  It's only if you think Leftism it the true way that you
are being a Communist proper, believing everyone should refrain from gain
and share all their goods and money.

	There is no evidence that RMS is a Communist, nor does GNU GPL favor
Communism in any way.  It is just a defense against software hoarders, which
almost ruined BSD if you remember History.  GNU GPL is to free software what
an Army is to a pacific country: only a way to make sure the country stays
free and peaceful and independent, not an end in itself.

	When you say things such as "the General Public License is not so
much about ``keeping free software free'' as it is about forcing us to
accept the extreme Communistic political philosophy of Richard Stallman and
others at the Free Software Foundation. The very spirit of the GPL is to
attack the very concept of Capitalism and individualism. There is no concept
of intellectual property under the terms of the GPL. Your hard work is no
more your property than everyone else's.", you get to misunderstood
everything.  This phrase I want to refute point by point.

	First, it is easy to call someone Communistic.  I've shown you they
aren't.  Political?  Yes, you are also.  It is just that your politics is
mainstream, our is marginal.  This shouldn't be a term of abuse.  Extreme?
This carries no meaning, unless you really meant "radical".  Radical yes,
because GNU goes to the root of the problem ensuring the continuation of
freedom.  In this sense, BSD is lukewarm, because it counts on the good will
of everyone to keep freedom against hoarding.

	Second, no one is forcing no one.  You can do it all by yourself
with BSD software, with GNU software, or with proprietary.  Just do not
hoard GNU software.  If you want to keep others away from the freedom of
having source, you won't be able to use GNU software, why is that such a
problem?  It's like some kinds of virus, if you do not want to be sick do
not go near the source of the virus!

	Third, what do you understand by Capitalism and individualism?  Do
you know that Capitalism is a term of abuse invented by Karl Marx?  The
bigger values in Western society shouldn't be capital, richness, but freedom
and justice.  It is freedom and justice that ensured the conditions to
capital accumulation and richness.  But to put richness before freedom and
justice can kill the chicken of the golden eggs.

	Also, individualism is not a value, it was created as just the idea
that the individual should have defense against the state or any other
collective power.  In this original sense the GNU GPL could be considered
very individualist, as it protects the individual free software developer
and user against corporate or government software hoarding.

	About intellectual property, it is just a concession in the former
of copyright or patent so as to encourage invention, it isn't a fundamental
concept of law or ethics, and it can certainly be abused.  I find the
concept to be widely misunderstood.  It is astonishing to see that just now
that richness in the Western world is so great, that the periods for
copyright and patent proctection are being enlarged.  That is hoarding for
sure, as the original idea of intellectual property should call for a
shortening of the proctection periods as richness grows, for public benefit.

	Finally, your work belongs to you and there is nothing in GNU GPL
against your owning it.  It just ensures you that if you create a program
for free use, it will remain free.  It is still your code, so that if
someone wants to use it in a proprietary way he will have to license it
directly from you, and then you can set your price for that alternate,
proprietary licensing.

	It is this possibility of dual licensing that shows how your idea of
Capitalism and Communism is weak.  In fact the GNU GPL does more to protect
the gains of the programmer than BSD.

	Please be more careful, read more, think more.


Leandro Guimarães Faria Corcete Dutra
Amdocs (Brasil) Ltda

Date: Fri, 14 May 1999 10:51:15 +0800 (CST)
From: Hung(2) Chao(2)-Kuei(4) <[email protected]>
To: [email protected]
Subject: BSD Licence vs GPL

Dear Mr. Maxwell,

I found your article
    http://www.daemonnews.org/199905/gpl.html
    "Restrictively Unrestrictive: The GPL License in Software Development"
misleading and likely to do harm rather than service to the open source
community.

To understand GPL, one has to understand the "political opinion" from
GPL which you omitted in your article.

Yes, Richard Stallman is against software intellectual property. I bet Mr.
Stallman would be happy if one day he wakes up to a world where software
copyright laws -- something GPL's enforcement depends on -- does not exist.
Whether you agree with his opinion (and the opinion of many people in the
open source community) or not, let us understand his point: software
should not be copyrighted.

So why did he (cooperatively?) created GPL that seems so much more
restrictive than the FreeBSD style license, and seems so much more
dependent on the copyright law?

I bet you heard "proof by contradiction" in mathematics. (OK, I know
there is a Latin phrase for it but I don't remember.) You don't agree
with a statement X. You _assume_ that X were true. You base your
arguments on X, and come to a contradictory conclusion. Your arguments
are all fine and logical. The only explanation left is that the
statement X was indeed absurd to begin with.

Now if someone jumps into the middle of the proof without understanding
the absurdity of X, he is bound to view the statements in the proof
as totally incomprehensible or at best "confusing". He is bound to see,
of course, absurd intermediate statements. It would not be wise to
claim that the flow of proof is incorrect when in fact it is X that is
absurd.

I see the open source software movement as a time-consuming proof of
the absurdity of software intellectual property, initiated by FSF's
GPL by way of contradiction. Please understand that, and you will see
the mathematical beauty in GPL. By the way, I would use the term
"recursive" instead where you used "infective". I personally see
GPL as a piece of work to be appreciated by the mathematically-minded.

Of course, you may not agree with Mr. Stallman's opinion that software
copyright should not exist. Whether Stallman is correct is not the
topic of this article. I am just trying to explain how the "proof
mechanism" works.

On the other hand, I don't see how anti-software-copyright implies
anti-competitiveness and anti-capitalism. You seemed to jump into
unrelated and far-fetched conclusions that seriously begs explanation.

Sincerely,

Chao-Kuei Hung
http://www.cyut.edu.tw/~ckhung/

Information Management Department
Chaoyang University of Technology

freshmeat.net Editorials - Who pays the developers

Who pays the developers? The company they work for, right? But what about those developers who develop Open Source software after hours, on their own time and equipment? Who pays them? Many say no one does and no one should. After all, it's Free Software. You don't get paid for Free Software. Before we develop such a closed attitude, let's take a look at what one of the founders of the Free Software movement has to say.

---

Copyright notice: All reader-contributed material on freshmeat.net is the property and responsibility of its author; for reprint rights, please contact the author directly.

---

Richard Stallman, in his article published in the book Open Sources -- Voices from the Open Source Revolution, says^[1]:

"The term 'Free Software' is sometimes misunderstood -- it has nothing to do with price. It is about freedom. Since 'free' refers to freedom, not to price, there is no contradiction between selling copies and Free Software. In fact, the freedom to sell copies is crucial: collections of Free Software sold on CDROMs are important for the community, and selling them is an important way to raise funds for Free Software development."

In short, Mr. Stallman is saying that the marketing and selling of Free Software is important -- if not crucial -- to the success of the Free Software movement. Which brings us back to the question... Who pays the developers?

As a developer or two have told me, they write what they write because of the satisfaction they get from seeing the results of their work. I can understand that; I have the job I do in this industry because making things work smoothly and efficiently is a very satisfying job to me. However, I don't do it for free, no matter how much satisfaction it gives me. Yes, sometimes I set up a network at a friends' house, or help them deal with their ISP (I speak the same tech talk as the ISP), but I still receive compensation. Not monetary compensation, but rather in the form of "I scratch your back, you scratch mine". Developers also deserve fair and equitable compensation for what they do, no matter how much they love to do it.

Some of what these people develop does earn them compensation -- grades in school for projects that are part of a Masters or Doctoral thesis, the recognition of their peers, and, finally, a paycheck from the boss. Unfortunately, that last one often isn't for Open Source development. Yes, a few lucky souls have been able to secure positions inside the cathedral that allow them to work on their projects and get paid. Most, however, aren't that lucky. The need for food and shelter often outweighs the need for personal satisfaction, and you end up writing the code the bosses want instead of the code you want.

The effect is that when push comes to shove, the stomach wins. You give in to the desire for some luxury in your life (like that new $1,200 video accelerator for Quake), take a job in the field you know best, and end up writing code for a company that isn't Open Source.

This often means that there is a conflict between what you write on the job and the project you were working on in your spare time. NDAs stop you from coding your project because it's too close to work, so you turn the project over to other people. They, of course, don't know your vision for the project, nor do they know your style or objectives, so the project takes a new direction, and wheels get reinvented. This tends to slow releases and hamper progress. Worse yet, the project winds up being abandoned altogether.

What are the alternatives? Well, you could become a starving artist, but few (if any) worthwhile projects have ever come out of skid row. Besides, the connectivity sucks. If you're lucky and have a rich uncle (sugar daddy, VC, whatever), you could end up running a Sendmail or a Netscape. You could become a consultant, but this is really just another form of starting your own company, and consultants are like experts -- the more you have, the less you accomplish. For most projects and most developers, these options really aren't options at all.

Often, when we're faced with a problem such as this, looking into history provides the answer we need. In this case, it's books. What do books have to do with the Web? Like the Web, at the time of their introduction, they were a revolutionary new way to deliver information accurately and consistently to the masses. Also like the Web, it wasn't practical for each author to start his or her own company to sell the books they wrote. Not only wasn't it cost effective, it also got in the way of their writing. The answer was: the publishing house.

A publishing house provides the infrastructure needed by the author to market his or her creation, and provides assistance in "tuning" the product to the market, all without stopping the author from doing what he/she loves best. What is needed in the software world is just that, a publishing house for Open Source projects.

Sure, a number of distros already publish and critique software. They sell it, too. What they don't do is pay a royalty to the developer. If a project goes south, they either drop it from the next release, replace it with a new project, or co-opt the project and continue development in-house. They don't pay a royalty to the developer who created what they are now selling.

The time has come to demand the developer's right to fair and equitable compensation for his or her efforts, whatever that may be.

The right to fair compensation is as much a right as any in the U.S. Bill of Rights. A means to publish and distribute what people create is as needed in the software industry today as it was in the book industry centuries ago. Who pays the developers should be the very same people who enjoy the benefits of using what the developer created. TANSTAAFL. I, for one, feel it's time to compensate those who create the software, in a manner that reflects the quality of their efforts.

[1] Open Sources -- Voices from the Open Source Revolution, O'Reilly Press, Copyright 1999, pgs. 56-67.

kuro5hin.org Britannica or Nupedia The Future of Free Encyclopedias

Reading List on Open Source and Intellectual Property  -- pro Open Source stance. Useful list of references.

GPL Legality Links

• http://www.law.berkeley.edu/journals/btlj/articles/12_1/Merges/html/text.html

Fair Use vs. Fared Use

Re Advertising Clauses in Licenses answer is not interesting (plain vanilla GPL apologetics) , what is interesting here is the question ;-). Right now I do not has the original post.

Re: Advertising Clauses in Licenses

---

• From: Karsten M. Self
• Subject: Re: Advertising Clauses in Licenses
• Date: Mon, 21 Jan 2002 01:24:19 -0800

---

on Sun, Jan 20, 2002 at 10:55:55PM -0500, Michael Bauer ([email protected]) wrote:
> On Sun, 20 Jan 2002, Karsten M. Self wrote:
> 
> > on Sun, Jan 20, 2002 at 12:07:53PM -0800, Lawrence E. Rosen ([email protected]) 
>wrote:
> > 
> > > The FSF website (http://www.fsf.org/philosophy/bsd.html), specifically
> > > discussing the "obnoxious" BSD advertising clause, argues that
> > > advertising clauses in licenses potentially lead to long lists of
> > > acknowledgements in derivative works.  RMS wrote that in 1997 he
> > > counted 75 such sentences that needed to be included in one version of
> > > NetBSD.  
> > > 
> > > I am unmoved by this perceived threat to free or open source software.

> > These comments are meant to amplify Bruce's comments.
> > 
> > It depends on where this text must be kept, relative to the software.

<...>

> > Free software must be careful about thousand-cuts practices.  There
> > are requests which seem reasonable in the single instance which
> > become a prohibitive burden in aggregate.  Close-binding obligations
> > (e.g.:  the obligation follows directly with the software, and can't
> > be satisfied on secondary media or means) not directly related to
> > software performance runs this risk.  Multiplied out 8,776 times
> > (the number of packages listed in my Debian packages list today),
> > they become a nightmare -- that's 8,776 cuts.

> A simple solution seems to be simply requiring a URL for the
> appropriate credit.  The list of credits could be automatically
> compiled using an appropriate convention and be as long as necessary.
> It would certainly save space.  I suppose there is some technical
> legal reason why this won't work, right?

Actually, this is a relatively poor suggestion for reasons similar to
those I'm pointing at indirectly in my post:  it specifically mandates a
practice which may seem reasonable in a current context, but would be
burdensome in a possible future one.

Good requirements IMO should:

  - Not be specific to specific technologies or presentation.  E.g.: the
    GPL calls for an interactive display message, but only if the
    program ordinarially runs interactively.  Specifics of
    implementation are left to the developer.  Current practice seems to
    be to include the message in a "Help -> About" screen, accessible
    via menu selection.  I'm not sure this satisfies the GPL's
    requirements, though I've been informed by several projects that it
    does.  I'd prefer not getting a splash screen on startup though,
    unless it's after the program main window appears.

  - Tend toward requirements that would very likely be met through
    practices otherwise required of the act of writing, transmitting, or
    executing a program.  Copyright statements in source code are, to
    me, eminantly reasonable.  You've already got source, and likely
    something telling you who wrote it.  Packaging requirements are
    clearly less so -- again, 8,776 lables on a box, buttons on a
    website, or copyright statements on a boot screen, vary from
    impossible to nuiscance (though possible) to possible but rather
    pointless.

A former co-worker once suggested to spec out any task assuming you had
at least 32,768 of anything.  These days, 2^15 is probably too small by
many powers of two, I'd say assume 2^20 - 2^30, and plan appropriately,
larger in many disciplines.

My current /usr/share/doc tree contains...25,122 files, totalling well
almost 10 million lines -- 9,794,373.  Of these, 953 are copyright
files, totalling 139,152 lines.  This being Debian, many of these
copyright files just point to /usr/share/common-licenses, which includes
the canonical copies of the Artistic, BSD, GPL, and LGPL licenses
(representing the bulk of packages).  Granted, I try out a large number
of packages (over 1,000 installed), but this amounts to 5.8 MiB of
licensing-related data.  Trivial on a 100 GiB system.  Significant if
you've only a few MiB to deal with.

Peace.

[May 7, 2002] Split IP Bar Feuds Over Copyright Law by Brenda SandburgThe Recorder

 The American Bar Association's intellectual property section stirred up a ruckus last month when it tried to get the association to file an amicus curiae backing the constitutionality of a law that added 20 years to the length of copyrights.

The U.S. Supreme Court recently agreed to review Eldred v. Ashcroft, 01-618, which challenges Congress' right to enact the legislation. And members of the IP section wanted to weigh in as supporters of the law.

That move set off a flood of e-mails, letters and faxes from attorneys who say the ABA has no business weighing in on the issue. The association's Board of Governors voted April 14 against a resolution that would have allowed submission of the brief.

The showdown over the amicus brief represents the growing divide between the two sides of the IP bar. On one side are those who favor strong protection of intellectual property rights. On the other are those who say IP owners are unjustly trying to extend their rights at the expense of the public.

In a bulletin to the ABA's IP section, Charles Baker, chairman of the group, emphasized the importance of the Eldred dispute to IP holders. Quoting the past section chair, he wrote that the case "could present a field day for those who have an anti-IP sentiment -- those who say information wants to be free, less protection is necessarily better ... and when technology advances, IP rights must be cut back."

Other attorneys clearly have a different view of the issue. And such disagreement, lawyers and law professors say, should preclude the ABA from taking a stand on the matter.

"We're happy to have as many briefs on either side," said Stanford Law School professor Lawrence Lessig, who represents Eric Eldred, the Web site operator challenging the copyright law. But he said the case "raises a fundamental question of constitutional balance and to ask the ABA to take a position representing all lawyers was extraordinary."

Lessig contends that the law violates the constitutional requirement that copyright be secured for "limited times." Prior to the legislation, the length of a copyright was the life of the author plus 50 years or, in the case of corporate works, 75 years. The new law added 20 years to copyrights.

The U.S. Court of Appeals for the D.C. Circuit ruled 2-1 last year that Congress had acted within the bounds of the Constitution in passing the law.

ABA General Counsel Darryl DePriest said the board decided the association's House of Delegates should determine the ABA's position on the issue. The 537-member House of Delegates normally sets association policy but since briefs in the Eldred case were due before delegates were to meet, the IP section asked the board to review the issue.

"We normally only file a brief where there has been a clear expression of policy by the House of Delegates," DePriest said. "Given the lack of unanimity in the bar, it made it especially difficult for the board to step in place of the House of Delegates and make policy."

Baker, a partner at New York's Fitzpatrick, Cella, Harper & Scinto, downplayed the disagreement within the IP bar. "There's a vocal minority" who support Eldred's position, he said. "Most IP attorneys think what Congress did was right."

The uproar began when consumer activist James Love posted notices on IP and antitrust Internet listservs that the ABA was about to vote on whether to file a brief.

"There was quite a bit of shock that the ABA would weigh in favor of it," said Love, director of the Consumer Project on Technology. "How could you argue that 75 years of copyright term wasn't long enough?"

Love contended that ABA members pushing for the brief come from firms that represent Walt Disney Co., the motion picture industry and others who favor longer copyrights.

"The IP section does have a pro-IP bent within reason," Baker said. "But I don't apologize for that because the Constitution has a pro-IP bent as well."

The University of California, Berkeley's Boalt Hall School of Law professor Mark Lemley said there was nothing wrong with lawyers advocating the interests of their clients but it would be misleading for the ABA to make an endorsement implying that all lawyers support the law.

"The ABA quite properly decided this wasn't an issue where there was substantial agreement so it shouldn't intervene," Lemley said.
 

[Apr 2, 2002] Doug Lichtman Copyright as a Rule of Evidence (from the collection at Berkeley Olin Program in Law & Economics, Working Paper Series; see also eScholarship initiative)

codemag.htmlConference report April 2001 Whose DNA is it, anyway?

The libertarian ideals of the Free Software movement collided head-on with the powerful interests of privatisation at the CODE conference in Cambridge

Rescuing a damsel in distress remains a powerful symbol, it seems. Only in this case the damsel is an animated Manga character, produced by the industrial animation company Kworks. Sold off the shelf for 46,000 yen, she faced a brief, probably brutal, destiny in a computer game.

Artists Philippe Parreno and Pierre Huyghe bought her copyright and rescued her from certain death. They called her Annlee and they open-sourced her, replacing her cute face with an enigmatic mask. They gave her a voice, a character, a story. And because she is now Open Source, Annlee can be developed by others. She has any number of potential histories and potential futures.

The animations featuring Annlee kicked off the CODE (Collaboration and Ownership in the Digital Economy) conference at Queens' College, Cambridge. The symbolism was unmissable: the Open Source movement as a knight in armour, a force for good, rescuing the mindless non-inventions of industrial production for meaningful cultural interpretation.

Before and after: Open Source rescues Annlee
In the face of the powerful forces for privatisation, of the proliferation of patents and shocking recent extensions of intellectual property rights (IPR), can the Free Software and Open Source movements, plus 'free' distribution of content, provide an alternative to the corporate vision of the world? This was the central question posed by CODE.

In a broad look at its subject, the conference brought together leading thinkers and practitioners from the media, software, law, technology and the arts - a mixture that eventually proved explosive. So, it was typical of the CODE approach, though perhaps something of a novelty in the new media context, to find the first speaker was from the field of English Literature Studies.

THAT 'LONE GENIUS' MYTH AGAIN . . .
Martha Woodmansee (Case Western Reserve University, Ohio), who has probably not had the privilege of talking to so many computer programmers at once before, framed the subject of copyright neatly: she traced our modern obsession with the lone creator to the Romantic notion of the poet as an isolated genius working in feverish solitude.

This idea, incidentally, is invalidated by any study of the Romantic poets themselves, who demonstrate a degree of collaboration and intertextuality no less than that found in Shakespeare's time, when these creative features were openly accepted. Indeed, Goethe - the prototypical Romantic loner - himself wrote: "My work is the work of a collective being who bears the name of Goethe."

Woodmansee argued that it was the book market of the early 19th century which encouraged the Romantic poets to set themselves up as solitary innovators. William Wordsworth, notwithstanding the creative debts he owed to his sister, his wife, the poet Coleridge and a host of others, played a major role in the campaign which led to the English Copyright Law of 1842.

Computer analysis has allowed English Literature as a discipline to explore the collaborative influences - and reclaim the social context - of the dead white males of the Canon, while students in the US now take courses on the real-world skill of collaborative writing. Yet, Woodmansee warned, collaboration in the digital domain is still threatened by Romantic ideology.

Her words acquired a certain ironic resonance in the days which followed, as Richard Stallman, the prophet-like originator of Free Software, did a dramatic 'voice crying in the wilderness' routine in the middle of someone else's speech, then stormed out, and a Finnish 'documentary' film portrayed Linus Torvalds (and other prominent open sourcers) with the kind of cultish reverence shown by the Victorians towards (dead) poets like Shelley and Byron. They may have done away with the copyright idea, but free software figureheads are still very much in the mould of the lone Romantic genius.

For writer Geert Lovink, who took the stage after Woodmansee, the future of true collaboration depends on an honest critique of Open Source - beyond the polarity of 'free software good, IPR bad'. In particular, the thorny question of alternative economic models must be grasped by a digital culture hitherto blinded by the California ideology espoused by the likes of John Perry Barlow: give it all away (and make money somehow, some day - possibly on T-shirt sales).

BANKRUPTCY: GOOD FOR THE DOTCOM SOUL?
The dotcom crash invalidated the Californian ideal forever, although, as Lovink pointed out, you would not think so from the attitude of the dotcom media - still preaching mindless optimism and the value of bankruptcy as a cleansing experience, even while the crash filters down and they find themselves on the street (as happened in April with the closure of the Europe edition of Industry Standard).

The next speaker, anthropologist Marilyn Stathern, seemed to be on the programme in order to give a view of collectivity in tribal societies. She quickly dashed the audience's expectations, however. Her analysis of Papua New Guinea's traditional culture made it clear that, far from collectivity, multiple property rights are the norm. In the case of Malangans, memorial figures of the dead, which people pay to view even as the original is destroyed, the act of purchase is not an act of acquisition, but of maintaining the flow of information between groups. The Malangan's continued existence, in the memory of the beholders, is guaranteed by the transaction.

Open Source, Christopher Kelty (another anthropologist) reminded us immediately after this, is supposed to be part of a gift economy, with reputation as its currency. But how do you spend reputation? Richard Stallman, who spoke next, embodied Kelty's rhetorical question: his reputation is legendary, but his work since leaving MIT has been made possible only by the so-called Genius Grant he has received.

If, by this stage, anyone in the audience still thought that the Free Software and Open Source movements are simply about open source code versus closed (proprietary) source code, Stallman forcefully spelt out the bigger picture. Open code means an open society, and vice versa.

His analysis of the history of copyright - non-existent in the ancient world, and a benign industrial regulation in the print era - concluded with the observation that computer nets return us to an ancient era, in which copying is a decentralised process, available to anyone, and encompassing commentaries and compendia. In such an environment, "Copyright becomes a Draconian crackdown, anti-human freedom," even though the media giants do their best to persuade us that copyright is normal, natural and necessary.

ENTER THE 'MOZART OF CODE'
Stallman - who had been introduced by Michael Century as "the Mozart of code, with the social passion of Tom Paine", and who ascended the stage bare-footed and Biblically-bearded - warmed to his subject with religious zeal as he listed the repressive, Soviet-like measures now used in the US to 'protect' copyright. He attacked the e-book as a publishing fait accompli, designed to strip readers of traditional rights, such as copying, lending, reselling or giving a book away.

Having vented his wrath on the various ways in which copyright profiteering is "attacking society's most important resource - its good will, its willingness to share," Stallman set out a constructive proposal for new copyright categories, based on a work's function.

Under his scheme, modification would be allowed with functional works (software, cookery books, reference works), but not with opinion pieces (essays, memoirs, etc). Aesthetic works should be categorised according to purpose - whether commercial or non-commercial. His suggestion of voluntary donations for music and other artforms was appealing, but, he admitted, would need some easy, anonymous form of e-cash to be feasible.

Among other dire warnings, he left us with the observation that if Shakespeare were writing today, most of his plays would be unpublishable because of copyright - a valid point, not least because Shakespeare was indeed (fairly) accused of plagiarism by rivals, but his accusers - unlike their counterparts today - had no power to silence him.

Michael Century followed Stallman with an exemplary humility of manner, as befits a man who has been an advisor to the Canadian government and Rockefeller Foundation. He argued that IPR should take account of the two categories of work distinguished by Goodman: autographic (eg paintings) and allographic (music, literature and anything else which depends on a notational scheme). Clearly, a copy is a forgery in the case of autographic works, but not in the case of allographic ones. He also posited an "ecology of payments - donations, micropayments and subscriptions" on the Net of the future, but again all of these would again need to be assisted by a sensible digicash system.

A SECOND ENCLOSURE MOVEMENT
After a rather lavish lunch, the law session loomed before us like - well, like the opportunity for nodding off a bit, to be honest. However, all sleepiness was soon done away with as James Boyle (law professor at the Duke Law School, North Carolina) managed a speech that was funny, fluent and far-reaching.

He began by cataloguing the extraordinary expansion of IPR over the last 15 years: biotech patents, business method patents, length of copyright terms, all of which add up to a kind of 'second enclosure movement'. The economic rationalisation behind these moves is that an incentive is needed for the creation of new products; the incentive in this case being a monopoly. "The Internet has exacerbated this situation," observed Boyle. "It's seen as a giant vacuum cleaner, consuming all the content in the world. No wonder there's been an over-reaction."

Boyle went on to argue for empirical studies to show whether IPR works - while clearly suspecting that it doesn't. A monopolistic market, he explained, must have price discrimination (as in the ludicrous variation in airline ticket prices), and this is behind Bill Gates' famous remark to the effect that Open Source is an un-American activity. Open Source, after all, undermines the ecology in which price discrimination can flourish. With Gates' shadow still falling across the podium, Boyle's conclusion was powerful: "A sophisticated critique of the state of affairs is needed . . . we are about to construct digital culture on the basis of the business plan of a monopolist, which would be a tragedy."

The next speaker, Bruce Perrens, another Open Source leading light, is an interesting case-study in the evolution of the movement; he started out writing free software in his employer's time, then became a 'volunteer' programmer before joining HP as they were taking Open Source onboard. As he said himself, "I started out as an isolated lunatic and am now three people from CEO."

Justin Watts, an IP lawyer, must have known he wouldn't be the most popular speaker to take the floor when he got up to follow Perens, but he probably had not expected the attacks which came his way. The trouble started when Watts remarked that Open Source programmers could to some extent ignore the threat of patents, as in true Open Source there is no central figure, no 'gatekeeper' who can be sued by the patentee.

STALLMAN STORMS OUT
Richard Stallman leapt up at this point to state that the mere threat of being sued would be enough to stop a developer; he went on to state how developers need to protect themselves. This could be done, he said, with counterstrikes, collective actions, and the backing of big companies like IBM and HP.

Although repeatedly asked to allow Watts to finish, Stallman eventually became incensed enough to dissociate himself from the Open Source movement altogether, which on an ideological level he clearly regards as a sell-out of Free Software principles. He stormed out, with all the drama and hair-tossing one would have expected of a true Romantic.

This was great theatre with which to end the first day. Stallman's appearance at the formal dinner that night was a PR coup for the conference organisers; but he looked cross as he sat through Glynn Moody's after-dinner speech, in which he compared Stallman once more to a musical genius (only this time it was Bach, while Linus Torvalds was cast as Mozart).

More myth-making followed that evening with the screening of the Finnish film in which the Open Source crew featured as an aggregate of solitary geniuses. The absence of women developers was accentuated by the appearance of mothers and wives, earnestly exhorting their dedicated menfolk to stop coding in order to eat: a role rather reminiscent of Wordsworth's housekeeping sister Dorothy.

The next morning dawned with Tim Hubbards, of the Human Genome Project, recounting the scary story of Celera's attempted hijacking of the project for monopolistic ends - an attempt which very nearly succeeded. Hubbard summed up the conceptual collapse of the US patent system with a simple analogy: "If you have a patent on a mousetrap, rivals can still make a better mousetrap. This isn't true in the case of genomics. If someone patents a gene, they have a real monopoly - the company that owns BRAC1 (the breast cancer gene) is already shutting down 'rival' diagnostic labs." Awarding patents for genomics clearly does not increase competition.

"Patents should be only for inventions, not ideas," elaborated next speaker Bob Young - the CEO of Red Hat, the company which assembles the (free) Linux kernel into (paid-for) Linux-based operating systems. "The software industry still adheres to a feudal model," he said. "Their clients are victims, not partners."

DATA EXPLOSION
Roger Molina, the astronomer and editor of art magazine Leonardo, who followed him, drew attention, as Tim Hubbards had also done, to the enormous proliferation of raw data in his discipline: 40,000 CD-ROMs every year, with this amount due to triple within a few years. With such an explosion of data, IPR makes little sense - limiting access means slowing analysis.

So, very sensibly, astronomers have given up the individual property rights (which were enshrined in data-poor times) for a kind of astronomical commons, the International Virtual Observatory Project. Data is in the public domain, there is public involvement, and new forms of collaboration are evolving. There are lessons for many other areas of knowledge here.

The artists took the platform next, with Antoine Moreau (founder of Copyleft) arguing very eloquently that the fusion of art, Free Software and the Internet is a force for transforming society. V2's Anne Nighten then recounted her practical experience of cultural Open Source projects, usefully highlighting the problems which documentation, production costs, maintenance and unsuitable service-based income models present for non-tech organisations - and which had hitherto been largely glossed over.

Artist Alok Nandi presented his vision of the computer as both narrative device and as monomedia carrying different types of content: his 'architextures' appeared to be a computer equivalent of montage. He urged collaboration at all levels of creativity and consumption, with cuisine as the guiding metaphor for this. His own project, at www.urbicande.be, started with text and images which were given for free; but 'payment' has been received in the form of contributions from visitors which have allowed the imaginary universe of the project to grow.

He was followed by Drazen Pantic, who made the observation that, "The Internet has a quantum mechanical effect. By observing something, you change it." In this fluid, quantum mechanical world, it would seem that copyright goes against a basic, universal process. Thus when SlashDot (the first successful example of open source publishing) removes a document from its site because it is threatened with legal action, the quantum world of the Net is being subjected to Newtonian laws, and two different universes are brought into contact - and conflict.

CSS-DESCRAMBLE: OUTLAW CODE
To stretch the quantum metaphor, matter may disappear from one place on the Net, only to reappear somewhere else. John Naughton (Open University and Wolfson College, Cambridge) made this beautifully apparent with his presentation of different forms of the outlawed CSS-descramble code - the Open Source DVI player code which is subject to more censorship in the USA than the instructions for making an atomic bomb. Yet the outlawed code is still out there on the Net - as an audio file, disguised in a poem - and in the real world, as a T-shirt.

Naughton drew attention to the fact that Cambridge University's own Senate House had recently debated a proposal to make the work of all of its students the property of the university. This he contrasted with the recent announcement by MIT that it would give away all its teaching materials on the web, forever. These two facts, which show two approaches so diametrically opposed, in themselves encapsulate the absurdly polarised Alice in Wonderland world faced by the knowledge guardians of the 21st century.

The urgent need for new economic models had been a recurring theme of the conference, and Rishab Ayer Ghosh's pioneering work on so-called cooking-pot markets has gone further than most in defining new terms. He is working on finding an exchange rate for free software, by surveying open source code to find authorship percentages (as authored lines of code).

Robin Mansell (LSE) identified three transaction models - public domain, indirect revenue (as with Open Source), and direct revenue (proprietary software). Her research indicates that the future will increasingly favour indirect revenue - good news for Open Source, but the problem of defining these indirect revenue models remains.

Mansell believes IPR in the digital domain must fail, as any rule which makes everyone a criminal loses its legitimacy. Philippe Aigrain of the EU - which is poised to bring European IPR legislation more into line with that of the US - pointed out that new frameworks need time to develop; he did not seem very confident that they could evolve in time to prevent the "tragedy of enclosures" which he fears. "We do not yet know how open information can lead to revenue streams," he said, once again raising the question of economic frameworks.

This was not the only question that the debate started at CODE still has to answer. No one had yet explained how to engage ordinary people in the campaign for open code, and an open society. Or how to encourage Open Source developers to make the lowly applications that make up the average desktop. But one thing had been made abundantly clear: that it will be the biggest missed opportunity of modern times, if all that Free Software liberates is code.

This report is by Jane Szita, editor of the Doors of Perception website. Contact her with your comments on this story: [email protected]

CODE (4-6 April 2001) was presented byArts Council of England, Academia Europaea, the University of Cambridge Computer Laboratory, and Cambridge University Law Faculty Intellectual Property Unit

PKI Linux Cooperative Software Development and Internet

Studying Linux and other projects like FreeBSD or GNU which are, besides all the actual differences, quite similar in their "spirit", reveals a picture of how software design looks like whendevelopers create something for themselves, which fits their needs, purposes and tastes. These projects show subjects or tasks that are considered important or interesting enough to spend some time and energy on. And in turn it shows subjects that are not considered important or interesting and are consequently neglected by the Net public.

 

"While Linux has a very reasonable development environment and a lot of programmers that would potentially be able to write a good word processor or spreadsheet or whatever, there are some problems which make me me doubtful that it will happen soon. ... A program like a word proceessor has no "glamour": it may be the program that most users would want to and most programmers would agree that it's not a simple thing to write, but I also think they find it a bit boring." (Linus Torvalds, Meta Magazine)

Linux is Unix and Unix is Internet - at least Unix and Internet are close relatives. So, if one wishes to gain an understanding of the huge Internet, then a close look at Unices should reveal some insights of the principles and characteristics that are true for the whole Internet. Cooperative software development is part of the Unix traditions ("Devil Book", Leffler et al. 1989; Hauben).

Individual and social motivations may be found:

• intellectual challenge and game
• creativity and pride of something self-made
• realizing something which fulfills one's demands on taste and quality
• socializing with people who share common ideas and interests
• fame
• fostering collective identity

The motivation mentioned last in the above list may be a very subtle or vage one within an individual set of concious and non- concious motivations for contributing to a free software project, but is nonetheless important for a view on collective identity in the Internet and on how such identities are established and enhanced. Cooperating in a project which is regarded as "good" and "important" by certain other people will provide a feeling of belonging to an in-group. Coming to a distinct notion of "We" necessarily means that there are "Others". Typical examples of the importance of creating distinct identities by the We-and-The- Others-mechanisms are the large amounts of "XY-Unix is the best" or "the only serious editor is XY" or "the stupid newbies on the Net" or similar topics in private and public communication that are discussed with much more emphasize and dogmatism than any alien observer would understand as being necessary for putting a matter further.

[May 1, 2002] Version 0.9 of my paper was released

[Apr 26, 2002] DECONSTRUCTING SOFTWARE COPYRIGHT, 30 YEARS OF BAD LOGIC

1976:
Copyright Act of 1976

First introduction of software copyright into federal law. The basis for doing so was confusing Congressional intent from the prior year (Rep. No. 473, 94th Congress, 1st Session 54 [1975]):

Section 102b is intended, among other things, to make clear that the expression adopted by the programmer is the copyrightable element in a computer program, and that the actual processes or methods embodied in the program are not within the scope of the copyright law.

reinforced by declaring this expression to be a literary work by an addition to the 'literary work' definition (Rep. No. 1476, 94th Congress, 2nd Session 54 [1976]):

..... computer data bases, and computer programs, to the extent that they incorporate authorship in the programmer's expression of original ideas, as distinguished from the ideas themselves .....

This implies a distinguishing line somewhere between expression and idea/process. But where? Without guidance, this Congressional intent is totally useless, as the CONTU commission lamented in 1978:

Where could a meaningful line of demarcation be drawn? Between flow chart and source code? Between source code and object code? ... The Commission believes that none of these is appropriate. The line which must be drawn is between the expression and the idea, between the writing and the process which is described.

Sadly, CONTU's comments are just as useless, little more than word substitutions to Congress' comments.

The software aspects of the 1976 Copyright Act were riddled with confusion. One participant, Congressman Railsback, in a House floor debate in 1976 stated sarcastically, "A good compromise is probably one that satisfies no one, but is acceptable to everyone, and it has been said that this bill is a compromise of compromises.", a double compromise both unsatisfying and unacceptable to anyone.

Quoting a paper by Rick Tache, "Another writer, Litman, argues that courts, in attempting to rely on the legal fiction of legislative intent, are required '... to engage in intolerable contortions and to disregard much of the probative evidence that the legislative history in fact contains.' She provides proof by showing that the court's persistent reliance on older precedent reflects a genuine and understandable confusion about how to interpret the 1976 Act. 'The statute is complicated and its language is often unclear. Courts consult the statute's legislative history for guidance, but find that it compounds their confusion.'"

Any software copyright policies based on the 1976 Act should be repealed.

[Apr 12, 2002] FT.com News and Analysis World Article

Open Source - Closed License There are many Free Software / Open Source licenses, semi-free and semi-open licenses and the number of them is increasing. How should a developer choose between them when releasing software?

The Register Gates: GPL will eat your economy, but BSD's cool By John Lettice Posted: 22/04/2002 at 16:19 GMT. That is pretty aggressive stance that spells trouble for GPL.

"There's a faction against that, the so-called general GPL source license free software foundation, that says that these other countries other than the U.S. should devote R&D dollars in the so-called open approach, that means you can never commercialize that software. And it is an interesting choice to deny -- for a country to deny itself the benefits of these high-paying jobs and the kind of taxes that let countries fund their universities, and fund general research that then goes to renew that pool of commercial R&D. Clearly there's an ecosystem there that has worked extremely well in the United States, and has probably been the unique thing that has let that push forward. And there is now a recognition that it's really a question of policy of allowing the so-called capitalistic approach to win the day there."

... ... ...

"Well, there are many different aspects here. One question is: Do you need the source code of an operating system as a user of that operating system? That is, should you be paying your people to study the intricacies of how the operating system is built and stuff like that? And the basic answer is no. That's something that for a few percent of the price of the PC you can buy a commercial operating system, where all the work of testing it, supporting it, delivering it, is included for a few percent of that price of the PC.

"For customers who want source code -- universities, large customers -- we provide that. But 90- some percent of that time, that's more a -- okay, it's nice, I have it, you know, should I ever need it. That's fair. So source availability is not the big issue. That's -- you have got source availability from us and others, and it's not much needed in any case."

 

tc - Subject: LT Talkbacks are missing the point ( Apr 23, 2002, 15:21:23 )

It is unfortunate that the article is the voice of Bill Gates, not some generally accepted scholar that doesn't have an interest in one side or another, because Bill does raise a philosophical question(s) that should be answered by both sides. The whole point of Bill's statements is what is the purpose of R&D, who should be doing it, and how should it be funded? If we move outside of the world of software for a minute, these questions still have great bearing on a society, whether it is a developing society or a mature society. The purpose of R&D is probably the most straight forward of answers no matter the arena. R&D is meant to discover new ways of doing things whether it be in agriculture, metallurgy, biotech, or computer science. R&D is a hit and miss system with more misses than hits. Part of the experimental nature of R&D is to come up with failures so that one can learn from these failures. The next part of the question is who should be doing it. There are three options available for most countries: academic/educational institutions, private companies, or private/public (mainly non-profit) entities such as a joint industry task group or a government agency. Of the three, only private companies have the expectation to make a return (i.e., profit) on their investment in R&D. If the research is done by the other two, it is generally available to the entire industry, however, this is coming under scrutiny lately with Universities themselves in the U.S. being granted patents. The final part of the question leads to where there is great divergence in the political discussion. If one excludes private companies' R&D, then the question is who foots the bill for the research and who should be allowed to profit from the research. What Bill is basically saying is that if private companies fund the research directly or indirectly (through taxes), then they should be allowed to profit from the research. The GPL does not allow this, whereas a BSD style license does. All the BSD style license does is level the playing field. Any company has an equal opportunity to use the result of the research. With a GPL license, no company can build upon the research and profit from the activity. It doesn't matter the company. Which leads to the question, why should a company fund research that they can not expect a return. This leads to industry coalitions and a different way of thinking. If the GPL wants to be succesful and promote IT jobs, then it needs to change the way of thinking of industry and how they fund R&D. I don't see the FSF focusing on this issue and this is where Bill currently has the upper hand in the debate. The FSF needs to answer the tough question that businesses are asking, which is if I fund this activity, how is it going to improve my bottom line. The FSF needs to seek out partners not in the computer business but in the retail and manufacturing worlds because these are the companies that will benefit. Computer related companies cannot benefit from GPL software unless their main product is not the software itself. This is why Microsoft is terrified of the GPL. Just my two cents. TC

patrick - Subject: He's right ( Apr 23, 2002, 12:57:16 )

He's right on many counts, however, he not putting things into perspective. 1) Not all software running on Linux has to be GPL, anyone can create comnmercial software that run on top of GPL software and Linux. 2) Linux is not the only software at hand in the business game. There is office software, colaboration etc etc. The OS is an integral but very small part of the industry. Like DOS was integral, but very insignificant with respect to the whole software industry. 3)In business, applications are the key, not the operating system. If applications could run without an operating system, no one would ever buy and use the operating system. 4)Capitalism on the extreme is just as bad. His business immediately kill other businesses preventing them to grow, compete and provide significant innovations, or they are bought. This does not play well in any business environment. There is only a hand full of "competing" software on the MS platform, the rest of the technology market is oriented around appliances, not software. So instead of having 200,000 businesses paying taxes on commercialization, you have 5000 for that same software if that many. Point and Case, no one in their right mind would dare create a software startup company which focuses on an area of the market that Microsoft has its sight on unless they intend to be bought. When startups can't happen, suggests that there is a serious problem in the business sector. Microsoft needs to be broken to allow air to flow to other businesses in that market. However, Linux itself and the GPL is not going to make that happen. Linux and its GPL licensing was the seed, but it is reaching its threashold and certainly will not go much further in the market. The corporations need to take it over to make Linux flourish in the business world. And for that, people like RMS must step aside, presuming the intention is to take Linux further in the business world. Some people don't want that, some people would love to work primarely with linux at their work place and get paid for it. For those who would want a good paying "Linux Job", then company like redhat, suse, mandrake etc must succeed. The only way they can succeed is by profiting, the only way they can profit is by charging for value.

 

I think I'm going to have to disagree with the popular view being expressed here. Gates may have motives of his own for pushing BSD, but let's look at some examples eh? BSD. The most obvious, would Unix or TCP/IP spread so far if not allowed to be taken by Sun, IBM, DEC, HP, etc... for commercial gain? LDAP. LDAP was researched and developed at the University of Michigan was coopted (legally) by Netscape and others. So, fields of endevour which can truelly be labeled "research", meaning they are breaking new ground and creating new standards probably do need a BSDish license, so that both free and commericial users are on the same page. However, where we talk about infrastructure like Linux, Samba, Apache, Wine where there are already "standards" (small s in some cases) then there is little larger community benefit for using the BSD approach. But, far be it from me to remove a developers right to choose a license ;-) So if a government organization is doing pure research then yes I think the obligation lies with a in the direction of a license that makes for the easiest path to adoption by all parties, commercial or free. So much of what we do however is implementations in direct competition with an existing commercial package (gimp/photoshop) that GPL for the protection of our time and work is a wise move.

DevShed.com - Brain Dump Open Source for Open Minds by Tom Swan. November 02, 2000. Tom Swan is an internationally published author of more than 30 books on computer programming in C++, Pascal, Delphi, and assembly language. Tom is a frequent contributor and former columnist for Dr. Dobb's Journal, PC World, and PC Techniques. He is an avid Linux enthusiast who supports free software distribution to the Linux community.

Do you see Open Source software being popular mainly in scientific circles, or will it become a viable alternative to commercially sold programs? Is the popularity of Linux a fluke, or an indicator of a new future for software distribution? "I think Open Source will help to keep small, innovative developers alive. Although the prospect of revealing your crown jewels to the world may be frightening, I don't think it really matters. Other than a few exceptions such as Linux, we don't have several companies trying to sell support for the same Open Source product. GPL practically guarantees this.

"Take V, for example. My distribution remains the only source. I've gotten lots of feedback on bugs and features, but no one has tried to release an alternate version. Because V is Open Source, users feel more confident because they know at least they will have access to the source code to protect themselves.

"So in the long term, I believe successful, small, innovative software companies will survive by adopting the Open Source model. There is a level of comfort knowing the source is available if necessary, and this will make customers prefer Open Source."

Why did you decide to release V as free Open Source software?

"V has grown beyond my original intent. It was first supposed to be an academic tool--used to teach introductory programming. And in a university environment, nothing other than Open Source makes any sense. But in the long run, it has been a win for everyone. Programmers use it knowing the source will always be available. I receive outside help on keeping V going that I wouldn't have if it were closed. And I get a good feeling that I'm helping people produce better software."

Finally, in what ways might software developers join the Open Source movement and still make a living at their craft? Or is Open Source at odds with programmers being paid fairly for their work?

"That is a complicated question. I've figured out only two ways to make a living with Open Source software--with a company, and as an individual.

"Companies do it by providing support and packaging. They hire programmers to develop new software under Open Source, or to maintain and improve existing Open Source software.

"To make a living as an individual is harder, I think, and requires patience. Creating Open Source software as an individual probably won't have an immediate payback. But over time, good software will lead to new opportunities.

"A truly great program, for instance, might lead to [the programmer] forming a successful company to support it. The software may also attract the attention of big companies, leading to new opportunities there. It can also lead to an impressive resume for advancing a career. "My own case is probably not typical. I once co-founded a very successful commercial software company, which was sold. I've seen V and VIDE as a way of giving something back to the software community. So far, I've not made a cent from these V projects, and in fact have spent considerable money maintaining the V web site. "However, I have had other opportunities. For instance, I received a lucrative offer to direct a software project for a large computer company, mostly based on the work I'd done with V. And there have been other opportunities that I've chosen not to take. I don't think these opportunities would have materialized without the work I've done with V. Some of the opportunities came early in the V project, while others are still developing after several years. I am fortunate to have the means to allow this. Others might have to do this as a second "job", or as a hobby. There is some element of risk--all the work might never pay off with real money. But for a software developer like me who generally shies from the corporate world, Open Source is the way to go."
 

Computer News Go with the GPL - Or Else  Implicit GPL threat. Mostly fake, but still a threat... As for Freashmeat it might be useful to excude v. 0.1 type of software that most probably use  GPL license ;-)

BSD The BSD License and the GPL Why we need both [Librenix.com]

Into the ongoing debate, 'The GPL versus the BSD license', I'd like add yet another opinion. I agree with the positive points claimed by both sides, but I don't generally agree with the negative ones directed at the opposition. That is, I think that both licenses have strong points that the other lacks, and further, that the two actually complement each other when both are applied to products in the same market. We need them both.

In the operating systems arena, for example, I believe that Linux and *BSD together will eventually cover more ground than either could cover independently. Companies that might be uncomfortable building products based on GPL'd code can use a BSD-derived package and enter the market quicker and cheaper than if they built their product from the ground up. Further, a company that initially develops a closed source product -- but based on BSD-licensed source -- is more likely to release the source in the future, as their situation changes, than a company that develops a purely proprietary product.

Meanwhile, individuals who aren't striving for an exclusive marketing advantage in their package can spread the open source approach with more certainty by using the GPL.

Another advantage of having more than one major strain of open source license is purely psychological; the presence of multiple open source licenses makes each of them seem more mainstream and, therefore, less radical. This makes it feel like a smaller, safer step for a company to try out open source.

The license to choose, of course, depends on your goals. The BSDL is less restrictive and is, therefore, more free. The GPL, while less free, guarantees that published derivitive works retain the original set of freedoms (and restrictions). Therefore, if you want maximum freedom for the licensee, the BSDL is best. If you want guaranteed access to the source of future published code, the GPL is best. In practice, each allows the creation of open source code that the other would not. If I had to assign the common labels to them, I'd say that the BSDL is more consistent with the term 'free software' and that the GPL is more aggressively 'open source'.

That is, the GPL provides for the distribution of multiple generations of source code. The BSD license encourages more people in wider ranging situations to try out, and maybe release, source code, but still allows for new variants to become closed in the future.

While the two licenses do have an overlapping market, together they encompass a larger potential user base. As long as people and businesses come in countless varieties, no single license will fit them all. That the open source/free software world is large enough to require multiple, and quite different, licenses, also seems to me to be a good thing.

Freedom Can Be Slavery

A Copyright to Avoid Exploitation

The author of this software is Ian Kaplan
www.bearcave.com
[email protected]

Copyright (c) Ian Kaplan, 1999

THIS SOFTWARE IS BEING PROVIDED "AS IS", WITHOUT ANY EXPRESS OR IMPLIED WARRANTY. IN PARTICULAR, THE AUTHOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND CONCERNING THE MERCHANTABILITY OF THIS SOFTWARE OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.

This is not public-domain software or shareware, and it is not protected by a 'copyleft' agreement, like the code from the Free Software Foundation.

This software is available free for your personal research and instructional use under the 'fair use' provisions of the copyright law. You may, however, redistribute it in whole or in part provided you acknowledge its source and author, Ian Kaplan. You must also include this copyright notice (copyright file) in your distribution. You may, for example, include the distribution in a CDROM of free software, provided you charge only for the media, or mirror the distribution files at your Web site.

You may not sell this software or any product derived from it in which it is a significant part of the value of the product.

Any use where others stand to make a profit from what is primarily my work, requires a license agreement. This includes corporate structures like Red Hat that distribute software free on the Internet but charge a fee for a CD-ROM and/or for support. Per-copy and unlimited use licenses are available; for more information, contact Ian Kaplan, [email protected].

... ... ..

One key motivation said to drive volunteers to open-source projects--the prospect of leaving a lasting mark on the software world--has shown its limits. "I'm tired of people who complain loudly when something doesn't work but fall silent when asked to help in fixing it," groused Christoph Phisterer in his resignation from leadership at the Fink project to bring open-source and Unix software to Mac OS X computers. "I once thought sharing my knowledge, experience and time with the community was a good thing, but now I know better."

Bibliography. from Safeguarding Innovation & Access A Dynamic Model of Rights Management By Judie Mulholland

[Mar 7, 2002] BSD license vs. GPL -- discussion of my paper

Re: BSD license vs. GPL by Andrew P. Ho on Thursday December 07, @04:54PM

Gregg, you are correct except you are leaving out the "contagious" feature of GPL. By authoring code that incorporates GPL code, I, as an author of the new code, is not free to release the new code under a GPL-incompatible license. Thus, my freedom to make my code proprietary has been deprived by the GPL (via the code from which my code has been derived from). You are correct that the restriction would be avoided if I did not base my code on GPL code. That, however, is precisely the difference between GPL and BSD. If I base my code on BSD code, I would be free to release my code - that incorporates BSD code - as proprietary code. Back to the example of FreePM: Since FreePM is BSD code, anyone can take FreePM, combine it with some proprietary modification, and release the resulting product as proprietary code. When I say anyone, I mean that literally (including the original developers). Therefore, by release code as GPL, the original developers are also depriving themselves of the option to benefit from the open source development process and then eventually turning the code into a proprietary product. This may be an important consequence of the "contagious" GPL vs. non-GPL.

Re: BSD license vs. GPL by Andrew P. Ho on Thursday December 07, @11:46PM

Therefore, by release code as GPL, the original developers are also depriving themselves of the option to [benefit from the open source development process and then eventually turning the code into a proprietary product]. It is possible to misunderstand without the brackets :-). No, the original authors are still free to do whatever they want with the code. I am not so sure about that. Can you give an example of GPL code that was subsequently released as proprietary code by its "original" authors? The GPL doesn't restrict them, only the 'freeloaders' who want to download a product and repackage it as theirs. On the contrary, once the code has been released under GPL, even the original authors could not restrict its redistribution (under the terms clearly set forth in the GPL). This means that the GPL prevents even the original authors from changing GPL code to proprietary code. Remember, GPL protects the right to redistribute the work and derived work. The freeloaders and the authors/contributors are treated equally under the GPL terms. Notice that there is no language in the GPL to differentiate "users" into different classes. Since I am not aware of any case of GPL violation, I presume that it is either 1) a practically enforceable license or 2) one that is trivial to circumvent. Evidence of 2) would be proprietary clones of GPL software. Last I checked, there isn't an abundance of such software. So, perhaps GPL is somewhat practically enforceable?

The ethics of the BSD license...

The license agreement from bsd makes sense if you understand the basics of USC Title 17 law(patent law, which copyrights falls under). If someone publishes software without a license agreement, they will retain all rights provided under USC Title 17 law. The license agreement allows the copyright owner to modify these rights either way. The bsd changes the default rights to allow others to distribute the software free of charge, but they must post a notice that bsd owns the software. "Free" software helps promote an organization or products that they hold.

[Mar 4, 2002] The History of the GNU General Public License

The GPL (The GNU General Public License), created by Richard Stallman, serves as the de facto constitution for the Free Software movement. It covers the majority of Free Software/Open Source software and has become the legal and philosophical cornerstone of the Free Software community. Because of its fundamental nature, it is useful to document the historical evolution of the GPL.

First, the GPL comes from the philosophy of Richard Stallman and the GNU Project. The general history of GNU is covered here. In this page we will be focusing on the specific events in the creation of the GPL.

In the early years (1984 to 1988), the GNU Project did not have a single license to cover all its software.  What led Stallman to the creation of this copyleft license was his experience with James Gosling, creator of NeWs and the Java programming language, and UniPress, over Emacs. While Stallman created the first Emacs in 1975, Gosling wrote the first C-based Emacs (Gosling Emacs) running on Unix in 1982. Gosling initally allowed free distribution of the Gosling Emacs source code, which Stallman used in early 1985 in the first version (15.34) of GNU Emacs.  Gosling later sold rights to Gosling Emacs to UniPress, and Gosling Emacs became UniPress Emacs.   UniPress threatened Stallman to stop distributing the Gosling source code, and Stallman was forced to comply. He later replace these parts with his own code. (Emacs version 16.56).  (See the Emacs Timeline) To prevent free code from being proprietarized in this manner in the future, Stallman invented the GPL. Detailed description of this event can be found in Stallman's 1986 speech at the Royal Institute of Technology, Sweden...

[Feb. 28, 2002] O'Reilly Network GPL Tested in Court [March 02, 2002]

... Yesterday, the GPL was examined in court for the first time. In a hearing in Courtroom 13 at the US District Court in Boston, Judge Patti Saris heard arguments in the complex dispute between MySQL and NuSphere/Progress, which centered in no small part on the use of software said to be governed by the GPL.

Judge Saris was surprised at how many people were there to hear the arguments on a motion for a preliminary injunction barring use of the MySQL mark by NuSphere. She noted the almost religious zeal of the open-source community. She also noted that both parties came loaded for bear and that MYSQL had flown in David Axmark from Sweden and both parties had expert witnesses prepared to testify.

I went with John Palfrey, an associate here at Ropes and an affiliate of the Berkman center. John took notes and sent me a write up. Here is a rehash of what John sent me.

Judge Saris stated that the issues presented by the parties at this stage of the litigation were relatively straightforward legal matters that probably could be dealt [with] based on the facts - with some minor clarifications - set out in the earlier submitted briefs. She reminded both parties that the issue that day was whether a preliminary injunction should be granted - not a full discussion of the merits of the case.

At this hearing, Judge Saris was considering whether to grant a preliminary injunction on two issues: NuSphere's use of the MySQL-related trademarks and NuSphere's use of certain code developed by MySQL and governed by the GPL as part of its Gemini product.

Though she did not issue any orders in court, Judge Saris made clear that she intended to issue a preliminary injunction against NuSphere's use of the marks in question and that she was not going to issue a preliminary injunction in the more complicated matter of the use of the MySQL code and terms the GPL. The trademark issue (I filed this Trademark application for MySQL) was a fairly straight-forward contract construction discussion, with no cutting edge issues involved (from my perspective). She started with the presumption that irreparable harm existed, and never moved far off that point. The harder issue, and the one on which she will almost certainly not rule at this time, is the issue of whether NuSphere's use of the MySQL code under the GPL, and what NuSphere provides to end users pursuant to the GPL.

One interesting point: it did not appear that anyone was arguing that the GPL did not apply or was not a valid license. It sounded as though the GPL was treated as any other license would be in a software context. Judge Saris seemed to focus on the question of whether Gemini constitutes an independent or a derivative work and whether the harm caused to MySQL met the irreparable standard. Experts -- none of whom were permitted to testify today, though Eben Moglen, among others, was in the room -- had filed what the Judge called "classic book-ends," or perfectly conflicting reports, on the question of the derivative work. Much of her questioning surrounded whether Gemini could operate without MySQL (as distributed, MySQL contends, it cannot) and whether or not the two products had been "integrated". She seemed to be moved by the NuSphere argument that there was no co-mingling of the source code and that "linking" to another program did not equate to creation of a derivative work. She also pushed hard on the questions of whether the distribution clause of the GPL was violated, though little progress was made on that point by either side. Ultimately, Judge Saris seemed unconvinced that MySQL could show a likelihood of success on the question of irreparable harm.

All in all it appears that this federal court considers the GPL to be a valid license (which shouldn't be surprising - but it has been an issue from time to time and commented on in the academic literature) with a somewhat ambiguous clause about the obligations that arise when you distribute code that combines GPL code with code that was developed independently.

Tim O'Reilly is founder and president of O'Reilly & Associates and an activist for Internet standards and for open source software.

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