Softpanorama Copyleft Problems Bulletin, 2003

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[Dec 17, 2003]  Software-based IP Infringement

Software-based IP Infringement

By Bill Claybrook
http://aberdeen.com/ab_company/bios/claybrook.htm

December 17, 2003

In a white paper that I have written entitled Computing without Indemnification and Warranty Contracts: A Business Risk for Open Source Software Users? [ http://aberdeen.com/ab_abstracts/2003/12/12030008.htm ] I included a passage from an IP attorney, Michael Overly. He said that he placed a clause in a contract (for a software purchase) for one of his clients that stated "The software supplier warrants that there is no open source software in the software." The supplier, at first, refused to approve the clause but eventually relented.

I have been hearing rumors for the past few months that open source code, some of it GPL licensed code, is making its way into proprietary software products. According to the GPL license, a system incorporating GPL-licensed code is an extended version of that code. The GPL license says that any extended version of the resulting program must be released under the GPL license if it is released at all. This means that if a developer at company ABC inadvertently uses GPL-licensed code in ABC's proprietary software, then the proprietary software should be released under the GPL license. Why would something like this happen in the first place?

Developers are often under pressure to deliver code to meet strict product development deadlines. This can tempt developers to "borrow" code that works, or can be easily made to work, from some other source. While developers today are more knowledgeable about licensing and IP infringement than I was as a developer that included Unix kernel development several years ago, it is still the case that some developers might be tempted to borrow code distributed under a different license than their own code. This borrowing is not limited to just open source code; a developer could borrow from someone else's proprietary code to put in his proprietary code. However, since open source code is readily available on the Web, the probability is much higher that open source code would make its way into proprietary code, than say Microsoft Windows code making its way into some other firm's proprietary code.

How can a software company, open source or proprietary, protect itself from possible IP infringement claims? I know of one company that can help --- Black Duck Software [ http://www.blackducksoftware.com/ ] . I visited Black Duck Software last week to get a demo. Black Duck develops and distributes software solutions that manage and mitigate software development risks. Black Duck aids companies and their legal counsel in identifying and validating open source software, proprietary software, and combinations of the two --- for internal or commercial use. This enables Black Duck customers to pass software audits and ship violation free software. Black Duck's software works in cases where software distributed under various licenses can be part of the same software product, and the licenses are not restricted to just open source licenses. This can be very useful, for example, for companies that are developing proprietary software to run on Linux (or porting existing proprietary software to Linux), and they are worried that the proprietary software

11:01 ET

Copyright 2003

GROKLAW

Understanding Open Source Software - by Red Hat's Mark Webbink, Esq.

Wednesday, December 31 2003 @ 09:20 AM EST

Here is a good article to share with your boss.

A couple of related questions... Authored by: drobson on Sunday, January 04 2004 @ 07:28 PM EST This article is very helpful. I have a couple of related questions and hope
someone can point me to information about dual licensing. Specifically...

Several vendors seem to offer two versions of their software: a GPL version and
a proprietary-licensed version which is available for a fee; prohibits revision
and redistribution; and includes support.

[1] Is this legitimate? Is it possible for the author to distribute the same
code by two seemingly conflicting licenses at the same time?

[2] I am writing a program and would like to distribute version 1.0 via GPL and
simultaneously sell 2.0 (which contains much 1.0 code) under a
commercial-restricted license. Later, when 3.0 is ready, I may elect to make 2.0
GPL and 3.0 commercial-restricted. I understand that it is not possible for a
secondary user to do this. Is it possible for the author to do it?
 

Understanding Open Source Software - by Red Hat's Mark Webbink, Esq. Authored by: Anonymous on Sunday, January 04 2004 @ 06:10 PM EST And yet, the reasons to how GPL would actually be better than BSD/MIT license is
simply not there. It only states that GPL is a good license.

Yes the viral effect is there, not worse than proprietary it states, but very
much worse than Non protective licenses which is actually the same as the word
FREE. The word restrict is not same as free.....

Worst people are know to be those who say "It's free, but..." or
"I'm not rasist, but..." or "I don't hate you, but..."
and so forth... same is it with the GPL, here and it's the lesson.

Please consider license choice and consider freedom as a viable aspect of it,
that would mean BSD/MIT

Understanding Open Source Software - by Red Hat's Mark Webbink, Esq. Authored by: hooper on Thursday, January 01 2004 @ 05:11 PM EST Just my opinion.

I don't care to listen to a word RedHat has to say about open source. I see
RedHat as a traitor to the open source movement with the words they write and
language they use. More than a few feel as I do.

Using a name for what they call their new open source project that they had no
right to use. Telling the world that they would be better off using Windows.
That is RedHat.

I put little if any faith in any corporate Linux. I prefer noncorporate
sponsored open source works for both business and personal use.

I know many feel that Redhat is a leading factor in the fight against SCO, but I
don't see it that way at all. Nor do I see Novell/Suse as a good trend. Take it
for what you will, Novell is the king of proprietary networking and now being
they do not have a product worth anything, they purchase suse Linux. Greed is
everywhere. Not just SCO.

If your looking for a hero, look for those who contribute without backstabbing
the community when their model of a desktop or anything else doesn't pan out.

Sorry for the negativity, but I enjoy the open source movement and
participation. Not corporate greed and those who try to play the fence until
they fall.

[ Reply to

Authored by: Anonymous on Friday, January 02 2004 @ 09:33 AM EST

While the individual components of the compilation do have their own copyright,
the compilation or grouping of those components has its own separate copyright
so long as that compilation is sufficiently original. Thus, the creator of the
compilation may restrain others from reproducing that compilation.
(See
"Feist")

A derivative work, by definition, is a work that derives from, or is
modified from, an original work. While the derivative may infringe the original,
copyright may still arise in the derivative so long as it is original.

The
difficulty with these principles, and the whole SCO circus in general, is that a
work must be original and creative in order for copyright to arise. Works that
are marginally original, such as phone books, bingo cards, page numbers in law
reports, etc.. are marginally creative at best and will generally not enjoy
copyright protection.

Computerworld Is the GPL good for the software industry by Chris Sontag and Bradley Kuhn

13/10/2003 | Computerworld

The General Public Licence (GPL) is not good for the software industry for a variety of reasons. These include:

• The GPL is full of contradictions and could be interpreted in a number of different ways. At the outset, it bears noting that the GPL is as much a political manifesto as it is a quasi-legal document. It is replete with ambiguities. More importantly, it has never been tested in court. Nobody knows what judges or juries will do when presented with the GPL and asked to find that someone violated its terms, or when someone tries to use it as a defence to a copyright or patent infringement claim.

   

• The GPL’s authors have one point in mind: to destroy the value of proprietary software. Richard Stallman, founder of the free software movement, was recently quoted as saying: “Proprietary software is antisocial and shouldn’t exist.” If the authors of the GPL have their wish, there will be no cost to software. Why is that so bad for end users? If software is free, companies won’t be around to service that software, provide customer support and produce upgrades. How will software companies afford to pay for salaries, benefits and keep people gainfully employed? It won’t happen with free software.

   

• IT companies avoid porting to software that is licensed under the GPL. The SCO Group recently received a letter from a company supporting our current legal battles, stating: “We have resisted porting our software tool to Linux because of the fear of seeing our source code published on the Internet shortly thereafter.” We believe that for Linux to flourish in the future, a licence other than the GPL will have to be prescribed.

   

• The GPL causes software innovation to stagnate. In this same letter that SCO received, the writer states: “Small developers like us used to be the lifeblood of the computer business — innovating and bringing fresh ideas and products to the marketplace. How can this continue if we are supposed to donate all of our efforts?” The GPL essentially prohibits a company from taking a software product like Linux, writing proprietary applications and add-ons, and then selling that software without showing anyone what was done to it.

   

• The authors of the GPL wrote the licence in such a way that it would govern the use, distribution and copying of software that was licensed under the GPL. These are the same items governed by the US Copyright Act. The Copyright Act pre-empts any claims that are governed regarding use, distribution and copying. Because of this, SCO believes the GPL is pre-empted by federal copyright law.

SCO believes that there are better licensing models available which, unlike the GPL, are not in conflict with US copyright law. These licences give developers greater incentives to innovate without destroying the value of proprietary software. Until the legality of the GPL is fully tested, organisations that rely on open source software released under the GPL will continue to take an unnecessary risk. The only way in which this risk can be mitigated is for the GPL to change, or for developers to work under more flexible licences.

Sontag is senior vice president and general manager of the SCOsource division of The SCO Group. He can be reached at [email protected].

Yes

The GNU General Public Licence (GPL) has a positive effect on the software industry. Vibrant software sharing defended by the legal protections of GPL inspires growth and advancement, just as publishing and sharing research results invigorates fields such as physics, mathematics and psychology. Software advances through incremental improvement. Paradigms shift, standards change, and methods are reinvented. Access to others’ results, both successes and failures, spurs rapid growth. The widespread adoption of Internet technology started from widely shared and incrementally improved free software. That process continues today.

The GPL does change the ethical implications of our development activity. Sharing software is encouraged; sharing improved versions of software is rewarded. The primary industrial mechanisms and business models for software — support, contracted customisation and improvements for hire — thrive and are equalised under this model of freedom. Software is now, as it really always has been, a service rather than a product. The GPL lays the ground rules, ensuring that no particular developer or company holds power over any other, and no one controls the software users.

Users face a free marketplace. A vendor who distributes under GPL does not lock you in to their product. If you don’t like your contractors, you fire them and hire new ones. You have the source code, and the means and rights to modify it, so you can do the work in-house. Software companies can be held accountable by their customers and must actually show the value of the expertise that they add to the software.

Most industries that are primarily intellectual in nature, such as software, law and auto mechanics, thrive best as a market for experts. Information about the field is publicly available, taught in universities and swapped among practitioners. But experts who can leverage their knowledge into clear results for clients move to the top. Activity of experts under the umbrella of GPL forms a meritocracy, and yields a shared commons that profits all.

Admittedly, some business models don’t function in that meritocracy. The model whereby you bamboozle the world into running your proprietary software and extract an exclusionary licensing fee from each individual — who cannot fix bugs, make improvements or adaptations or get support services from anyone but you — has already begun to collapse. Trade-secret proprietary software, based on keeping knowledge away from users and programmers, now fails the test of business effectiveness as well as ethical propriety. A new IT economy, properly based on software engineering’s scientific roots, has emerged. The GPL underpins that new economy, as it puts users, developers, customers and academics on equal footing to improve and profit from the shared commons.

Success in this new industry will not be determined by exclusionary licensing deals, but by the ability of your software engineers to understand and improve the commons. The GPL creates a fair and competitive software industry that functions as a scientific endeavor, not a snake oil sale.

Kuhn is executive director of the Free Software Foundation, a charitable organisation in Boston. He can be reached at [email protected]

sewp92

[Oct 5, 2003] 760

[Oct 5, 2003] OSLicense.ver2  - a french paper.

Slashdot/ WIPO Pressured to Kill Meeting on Open Source

From the article:
Lois Boland, director of international relations for the U.S. Patent and Trademark Office, said that open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights.

"To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO," she said.

[Aug 15, 2003]  Linux Today - SCO vs. GPL Luminaries Decry Legal Maneuver as Posturing By Steven J. Vaughan-Nichols, Linux Today Correspondent

According to a SCO Group spokesman, SCO has decided that it will argue in its case against IBM that the GPL itself "'pre-empted' by the Copyright Act. That is to say, the rights and remedies provided by the GPL should be deemed meaningless by a court."

In short, SCO is now attacking the GPL as well as Linux. This, were SCO to get their way, would destroy not just Linux's licensing underpinnings, but the foundation of most free software.

SCO argues that the GPL is null and void because, "The GPL tries to define the rights of copyright holders with respect to copying, distribution, and modification of copyrighted source code. These are the very activities covered by the Copyright Act. Because the GPL attempts to regulate the same rights of copyright holders that are already regulated by the Copyright Act."

SCO's law firm, Boies, Schiller & Flexner, has yet to officially make this move on SCO's behalf. A partner in the firm, Mark Heise, who is working on the case though said, in the Thursday, August 14th Wall Street Journal, that, "the GPL, by allowing unlimited copying and modification, conflicts with federal copyright law, which allows software buyers to make only a single backup copy."

... ... ...

Thomas C. Carey, chairman of the business practice group at the Boston-based Bromberg & Sunstein, LLP, an IP litigation and business law firm, dismisses SCO's latest move as "posturing." SCO has very talented lawyers. It is conceivable that they may successfully challenge it. But not on this basis."

John Ferrell, founding partner of Carr & Ferrell, LLP, a Silicon Valley intellectual property and corporate law firm, thinks "The GPL is only a sideshow in this circus." And, "GPL is a contract that can be accepted or rejected by all users. By agreeing to the terms of the GPL, you exchange certain copyright benefits with other users. Transfers of copyrights are explicitly contemplated under the copyright laws; and in fact if a copyright could not be transferred, there would be little commercial benefit to owning one."

That said, though, Ferrell also believes that SCO had no choice but to try to make its anti-GPL claims. He explains, "SCO (has been) forced to challenge the legality of the GPL. IBM will assert that any Unix code incorporated in SCO Linux under the GPL was thereafter dedicated to the public by SCO under the terms of the GPL. To the extent that SCO claims copyright to any code contained in Linux, IBM will argue that this copyright is now licensed to Linux users under the GPL."

Against this natural line of attack, Ferrell goes on to say, "SCO has three defenses. Either (1) there is no SCO code in the Linux product it distributed, contrary to SCO's prior assertions; (2) SCO and its licensees were mistaken as to the true content of its SCO Linux product, and the GPL contract should be reformed or invalidated; or (3) the GPL is otherwise invalid due to some defect, public policy reason, or statute such as copyright law."

SCO probably wouldn't like the second option any better than the first. Larry Rosen, founding partner of Rosen & Einschlag, a small Silicon Valley intellectual property (IP) law firm and general counsel of the Open Source Initiative, observes, "I can't understand how SCO could challenge the legality of a license it adopted. Until very recently, SCO distributed Linux under the GPL. Why did they do that if they didn't think the license was valid? One of the fundamental principles of contract law is that you can't disavow terms you specifically adopt as your own contract."

... ... ...

Even Linus Torvalds, Linux's founder and leader, has some concerns about the GPL, because of "the political baggage that the GPL has. Linus uses the Open Software License (OSL) for "some other projects I work on, not for the Linux kernel itself. Some small parts of the kernel are under a dual OSL/GPL license (i.e., you can chose which one you want to use, and the kernel uses the GPL version), but that wasn't actually anything I did, its other people who also like the OSL."

Another reason Linus likes the OSL is that "it is a bit clearer on patent issues etc, for example, while still retaining the 'source must be free forever' clause, i.e., it's much closer to the GPL than to the BSD license."

All that said though, Linus says he "wouldn't try to change the (Linux) license unless that is forced on me by some major legal issues with the GPL. I consider that pretty unlikely."

... ... ...

It's not just US copyright law though that matters. Jeffrey B. Ritter, co-chair of national electronic commerce legal practice for Kirkpatrick & Lockhart, a major national law firm, observes "The global business community lacks any established legal structure for evaluating the sufficiency or enforceability of any software license, including the GPL. Whether the existing cases will align themselves to provide a court the clear opportunity to issue a strong opinion on GPL is not clear, but that business community will benefit from any certainty that can be established regarding the GPL. If the initial German judicial view of questionable enforceability prevails, clearly the free software momentum will be discouraged."

... ... ...

Related Stories:
PR: OSDL Releases Q&A Addressing Recent Legal Actions by SCO Group(Aug 14, 2003)
The Inquirer: SCO to Argue General Public Licence Invalid(Aug 14, 2003)
The Register: GPL Goes to Court(Aug 11, 2003)

[Aug 13, 2003] Knowledge@Wharton: Open Source: Closing, Closing...

"The case is making headlines, but the larger issue in question is whether Linux--which has become the poster child for open source software development--can truly remain open while simultaneously gaining acceptance in the corporate marketplace..."

Wharton chief information officer Gerry McCartney believes that the SCO lawsuit is a sign that Linux is becoming a viable commercial choice – and with that might come more business-oriented considerations. “SCO thinks that it has the exclusive rights to distribute Unix platforms, and with IBM getting behind Linux, it poses business problems for them. It’s an expression of Linux’s gaining credibility,” he says. “Vendors will want to make money from selling product, and a key part of that is the OS. If the OS is free, they can only make money from the hardware (like IBM) or from applications (like Oracle, for example). It’s not clear to me that other vendors won’t add proprietary features to Linux which they can sell as value-added services.”

Gerald Faulhaber, a Wharton professor of public policy, agrees. “In this case, the fact is, Unix itself was sort of in the public domain for a long time. Then, of course, AT&T claimed the rights, then they sold it off, it moved around, and now it seems to be with SCO.”

 

Faulhaber believes that both open source and intellectual property-based operating systems will coexist. “One won’t drive the other out. The most successful web server is Apache, which is open source. Nevertheless, Microsoft still competes in that market. It doesn’t make a great product, but it still competes. So I don’t think Linux will drive Windows out of the picture or vice versa.”
 

Tech News - CNET.com  Torvalds: What, me worry? (an interview with Linux Torvalds)

Do you ever wish you'd opted for a BSD-style license instead of the General Public License (GPL)? (Unlike the GPL, BSD-style licenses such as those used for the Apache Software Foundation Web server and the FreeBSD Unix offshoot permit open-source code to be made proprietary.)
Absolutely not. I personally think that the BSD license is a dead end for serious projects, since it inevitably results in forking with no way to re-join if it becomes commercially viable. (Editors' note: Forking is dividing a programming project into two different, overlapping projects.)

Forking a project is in my opinion hugely important, since forks are how all real development gets done, and the ability to fork keeps everybody honest (i.e. if you don't do a good job and keep your users happy, they can always fork the project and go on their own). But equally important is the ability to join back forks, when/if some group finds the right solution to a problem. And that's where the GPL comes in: you can really think of the whole license as nothing more than a requirement to be able to re-join a forked project from either side.

What fraction of Linux contributors these days are paid to do so?
Almost everybody of the major developers involved is paid to develop Linux in one form or another. Few of them started out that way, but once they proved their prowess, they had little trouble finding companies to pay them for doing Linux work.

Philosophies of Free Software and Intellectual Property

The Ethics of Coercion

Even if one views copyright in neutral terms, as a tool to be used to either good or evil ends, there is still an ethical question of coercion. This is the question of whether we should use legal means to oblige others to act in the manner we deem morally correct. Copyleft is an example of a coercive system, and unrestricted licenses an example of a non-coercive system. One might adopt a coercive scheme because one wishes to be an agent of change, as is the case with Richard Stallman. On the other hand, one may employ coercion to assert one's individual rights, without necessarily trying to change anyone else's convictions. Advocates of a non-coercive system may themselves dislike being coerced, and by application of "the golden rule" hence refrain from coercing others. Similarly, one may take the view that coercion is unethical, either in general, or in these specific circumstances. These alternatives form a kind of spectrum, the various bands of which I will now explore in greater detail.

Geocrawler.com - freebsd-advocacy - BSD licence vs GPL

FROM: Will Andrews
DATE: 02/21/2001 02:25:30
SUBJECT: RE:  BSD licence vs GPL

SUBJECT: RE: BSD licence vs GPL

On Wed, Feb 21, 2001 at 01:31:07AM -0800, Ted Mittelstaedt wrote:
> The problem with forking off your own private copy of BSD code is that
> now, every time that someone makes a refinement to the BSD code that
> makes it better, if you want to take advantage of that refinement you
> have to go back and re-implement it into your own code.  This is pretty
> easy to do initially, but the more divergence you yourself place into your
> own private source, the harder it becomes.

This is exactly why I never trusted how GPL advocates justified their
restrictive license.  Closing up one's source makes it impossible to
keep your code competitive with the open source base.  Keeping out
commercial vendors only negatively impacts your development: people with
money can fund full-time developers to bring more and better features to
your code.  They can choose to keep it to themselves for awhile, but as
you say, over time this will only lead to problems.

The other reason I like the BSD license is the same that Kris Kennaway
already gave:  It allows commercial vendors to implement code that was
*properly* designed, not designed under market pressure.  This makes the
world a better place.

FROM: Kris Kennaway
DATE: 02/21/2001 02:33:16
SUBJECT: RE:  BSD licence vs GPL

On Wed, Feb 21, 2001 at 01:31:07AM -0800, Ted Mittelstaedt wrote:

> To give you some examples of why this is so stupid, there have been a number
> of security vulnerabilities posted in the last couple of years that
> were repaired in publc BSD code within a day of release of knowledge
> of the vulnerability, yet commercial software vendors (who purported to
> be using Real Live BSD networking code) took weeks to issue patches.
> Well I can tell you, this is a recipie for getting your commercial software
> ejected from any self-respecting ISP.

Worse; I have the nasty suspicion that a lot of them NEVER get fixed,
and lurk around forever letting people who realise this fact take
advantage of them.  So there's a definite advantage to staying close
the BSD community, even though the license doesn't require them to.

Kris

FROM: Kevin Brunelle
DATE: 02/21/2001 05:01:14
SUBJECT: RE:  BSD licence vs GPL

John Baldwin wrote:
> . . . If I'm giving it away, I'm giving it  away.

This is one thing that really bothers me about GPL defenders. They seem to have a different definition of what it means to give something away. GPL'd code is not really free; you have to return your enhancements to the programmer. This is not like giving something away. If I give you a car and you add a new stereo system to it; the GPL would give me the rights to the stereo system.

With the BSD license I have waived all my ownership rights to the car, requiring anything back from the next user just won't work. Will I get stuff back? Most likely. People who use free code tend to foster a desire to give free code over time.

> Erm, just because a company uses a copy of my code in their closed source
> program doesn't mean that the copy of the code I have given away magically  disappears.

Once it is open, it is always open. Couldn't have said it better myself. Explaining it to someone who thinks the GPL is better just won't work though. I have been caught up in the debate on Slashdot before, it never ends.

FROM: David Johnson
DATE: 02/21/2001 11:48:22
SUBJECT: RE:  BSD licence vs GPL

Dennis Jun wrote:
> 
> Hello all!
> 
> ... So I wanted to ask some people who do program and
> contribute to BSD what their thoughts on this is. Does it bother you? Is
> it even an issue? Much thanx in advance.

It's not even an issue.

I don't contribute to any BSD OS project, but all of my own software is
under the BSD license. I use the BSD license because I want to share my
code with the world, pure and simple. I'm not giving it away, or I would
place it in the public domain. And I'm not keeping all to myself, by
making it proprietary and selling rights to use it. I'm just sharing it.
And sharing means no strings attached.

The FSF talks a lot about freedom, but software licensing has very
little to do with freedom. First, Free Software is not similar to Free
Speech. Not even close. Preventing developers from distributing their
works under proprietary licenses would be a *violation* of their free
speech. Second, claiming that the GPL is more free than the BSDL because
it has more restrictions is ludicrous. That's like arguing you can't
have free elections in a democracy because otherwise a monarch might run
for office and win.

What if someone came along and created a closed source derivative of my
code and made a million bucks off of it? I would be pissed. But it
wouldn't matter. I get pissed all the time at the numbskulls that keep
electing morons into public office, but I'm not about to restrict their
freedom to vote. If the reason your friend is gung-ho over the GPL is
the freedom issue, then he needs to learn more about freedom. Freedom is
not convenient. Freedom is not safe. Freedom is not conformity.

FROM: Garance A Drosihn
DATE: 02/21/2001 12:21:41
SUBJECT: RE:  BSD licence vs GPL

At 8:01 AM -0500 2/21/01, Kevin Brunelle wrote:
> John Baldwin wrote:
>  > . . .  If I'm giving it away, I'm giving it away.
>
> This is one thing that really bothers me about GPL defenders.
> They seem to have a different definition of what it means to
> give something away. GPL'd code is not really free; you have
> to return your enhancements to the programmer.

Let's just talk about what your feelings are about code you
write, and not get too upset about how other people feel
about code they write.  It is tricky to talk about these
religious issues without descending into some kind of
mud-slinging contest, but it would be nice if we could do it.

My opinion is that if you write the code, you have the right
to choose the license for it.  For the things I work on
("systems-level" things), I think a BSD-license works fine
and I am quite comfortable with it.  I can see that others
might not feel comfortable with it for other projects, as
they want to be sure that their original intent ("open source")
is maintained.

For something as large as an entire operating-system project,
the first hurdle is to have that OS doing "enough" to make it
worthwhile for a large enough group of people.  It maybe that
a GNU-style license is useful at that stage.  However, once
you DO have enough people contributing to the project, then
the danger of a "closed-source" fork running away with the
project is pretty minor.  You would need too many full-time
employees dedicated to just keeping up with the open-source
version.  And by letting the code be used in "more commercial"
projects, my feeling is that you're MORE likely to get
contributions from companies for the open-source project you
are interested in, even if they hold a back some portion of
their source code for themselves.

Just my opinion.
-- 
Garance Alistair Drosehn            =   <EMAIL: PROTECTED>
Senior Systems Programmer           or  <EMAIL: PROTECTED>
Rensselaer Polytechnic Institute    or  <EMAIL: PROTECTED>

FROM: Wes Peters DATE: 02/24/2001 13:48:45 SUBJECT: RE: BSD licence vs GPL     Dennis Jun wrote: > > Hello all! > > A Linux friend of mine and I were chatting bout the BSD licence versus the > GPL. He was asking me how *BSD developers felt about that their code could > (and has) being used by commercial companies and in turn becomes closed in > the end. That is, you don't know if your code will stay open or not. He > asked doesn't that bother BSD developers? I thought this was a very > interesting question. I couldn't give him a really good answer since I'm > not a programmer. So I wanted to ask some people who do program and > contribute to BSD what their thoughts on this is. Does it bother you? Is > it even an issue? Much thanx in advance. Sorry to reply so late, I had a connectivity interruption Wednesday. Let's look at this the other way around: "Gee, I just hate it when my ISP's routers get that bug fix I wrote last week." I think there are a lot of programs that are very suitable for the GPL. The GIMP, GCC/GDB/binutils, and most other tools programs are not harmed in any way by the GPL. Infrastructure elements like operating systems, libraries, and server programs may be, if it discourages vendors from using the code. My strongest complaint w.r.t. the GPL is that there are much better licenses that actually provide the protection the GPL seeks, without the political rhetoric and ambiguity of the GPL. Two that come immediately to mind are the IBM Public License and the Cygnus (now Root Hack, I guess) eCOS License. http://oss.software.ibm.com/developerworks/opensource/license10.html http://www.redhat.com/embedded/technologies/ecos/ecoslicense.html The eCOS license requires modifications to eCOS itself to be contributed back or made publically available, while the IBM license does not. Both clearly state, in legal terminology, that you are allowed to make and distribute binary products that use the original software without requiring your proprietary code to be covered by the license. Both also accomplish the goal of making sure the covered software is usable in commercial products, so that even Joe Sixpack can benefit from it. RMS *thinks* he is building software for the masses, but which do you think has a larger installed base, Emacs or the code in cable tv set-top boxes? GCC or the Ford or GM engine-management code? Linux or the code running in Casio watches?

Forbes.com What SCO Wants, SCO Gets GPL might be a Trojan horse in IBM camp during SCO lawsuit.

...like many religious folk, the Linux-loving crunchies in the open-source movement are a) convinced of their own righteousness, and b) sure the whole world, including judges, will agree.

They should wake up. SCO may not be very good at making a profit by selling software. (Last year the company lost $24.9 million on sales of $64.2 million.) But it is very good at getting what it wants from other companies. And it has a tight circle of friends.

In 1996, SCO's predecessor company, Caldera, bought the rights to a decrepit version of the DOS operating system and used it to sue Microsoft (nasdaq: MSFT - news - people ), eventually shaking a settlement out of the Redmond, Wash., software giant. In 1997, Darl McBride, now SCO's chief executive, sued his then employer, IKON Office Solutions (nyse: IKN - news - people ), and won a settlement that he says was worth multiple millions. (IKON acknowledges the settlement but disputes the amount.)

McBride joined Caldera as chief executive in June 2002. Two months later he changed the company's name to The SCO Group, based on the name of an ailing Unix product that Caldera had purchased in 2001 from its creator, The Santa Cruz Operation, of Santa Cruz, Calif. The Santa Cruz Operation now calls itself Tarantella (nasdaq: TTLDC - news - people ).

As with the 1996 DOS lawsuit against Microsoft, in the current lawsuit over Unix and Linux this company aims to take a nearly dead chunk of old code, bought for a song, and parlay it into a windfall. Not only is the strategy the same--so are some of the players.

SCO is basically owned and run by The Canopy Group, a Utah firm with investments in dozens of companies. Canopy's chief executive, Ralph J. Yarro III, is chairman of SCO's board of directors and engineered the suit against Microsoft in 1996. Darcy Mott, Canopy's chief financial officer, is another SCO director, along with Thomas Raimondi, chief executive of a Canopy company called MTI Technology (nasdaq: MTIC - news - people ). In this cozy company, SCO even leases its office space from Canopy--a fact disclosed in Securities and Exchange Commission filings, along with the fact that SCO's chief financial officer, Robert Bench, has a side job as a partner in a Utah consulting firm that last year billed SCO for $71,200.

Canopy companies sometimes share more than a common parent. They form joint ventures and buy and sell one another's stock. Last November SCO formed a joint venture called Volution with Center 7, a Canopy company. In 2000, Caldera sold off part of its business to EBIZ Enterprises (otc: EBIZQ - news - people ), a Texas company in which Canopy holds a controlling interest and whose board boasts three Canopy execs, including Mott, according to SEC filings. Previously, Caldera bought shares in two other Canopy companies, Troll Tech and Lineo, and later wrote off the Troll Tech investment but sold the Lineo shares at a profit, according to SEC filings. In 1999, Caldera sold its own shares to MTI, then bought those shares back last year, according to SEC filings.

What's the point of all this horse trading? McBride says he has no idea, since those deals happened before he joined Caldera. "I wasn't involved in those transactions," he says.

Yarro says the investments were made based on each company's belief in doing what's best for itself. "There's no hidden agenda," he says.

Yarro won't apologize for the IBM lawsuit. "I'm not a guy who goes away quietly in the night. I fight," he says. "If you take something from me, if you break a promise, I'm going to come after you."

And he doesn't give up. In 2001, Canopy and Center 7 sued software giant Computer Associates (nyse: CA - news - people ) in a squabble over a business partnership that turned sour. Two years later the litigation continues.

The IBM lawsuit could bring a windfall to Canopy, which owns 46% of SCO. Another beneficiary could be John Wall, chief executive of Vista.com, a Redmond, Wash., company that last August struck a licensing arrangement with SCO. Wall got 800,000 shares of SCO stock in the deal and still holds 600,000, making him SCO's biggest individual shareholder after Canopy. Those shares, which were worth about $1 each when Wall made the deal, now trade above $10.

One team that won't benefit is the folks at Tarantella, the company that sold its Unix code to Caldera in May 2001. After the deal, Tarantella still held 3.6 million shares of Caldera. But last year Caldera bought back all of them, paying 95 cents apiece for most. All told, Tarantella was paid a mere $36 million for its Unix code--the same code that Yarro and McBride now hope could generate $1 billion from IBM.

These guys in Utah are no dummies. The crunchies in the Linux community should be paying more attention.

Slashdot Linus Moves To OSDL, Will Work On Kernel Full-Time

Slashdot SCO Amends Suit, Clarifies Violations, Triples Damages

[April 23, 2003] O'Reilly First to Adopt Founders' Copyright Publisher Restores Balance to Copyright with New Legal Option from Creative Commons

Santa Clara, CA--Technology publisher O'Reilly & Associates has launched the latest of its initiatives to shake up the intellectual property establishment. At the O'Reilly Emerging Technology Conference today, founder and CEO Tim O'Reilly announced his company's commitment to applying the Founders' Copyright to O'Reilly books.

Developed by Creative Commons, the Founders' Copyright is a legal option that allows copyright holders to voluntarily release their works to the public after the period envisioned in the original 1790 US copyright law--14 years, with the option of one 14-year extension. O'Reilly will be releasing its books under the Creative Commons Attribution license, which permits others to copy and distribute work as long as they give the original author and publisher credit.

"Copyright law is a foundation of my business," said O'Reilly. "But the original copyright balance has been distorted to tip heavily in favor of creators and publishers. The 1998 Sonny Bono Copyright Extension Act increased the copyright term to the author's life plus seventy years, yet only a few works are still in active use over that length of time. This copyright extension, enacted to protect a small number of very valuable works, has had the unintended consequence of depriving the public of access to a far greater number of other works."

"As a publisher, I want to profit fairly from my work, but also nourish the intellectual commons. It's in my best interest to ensure that the public domain continues to be a deep well from which we all can draw. By adopting the Founders' Copyright, my company can protect our intellectual property for a reasonable term, and then give it back to the public."

Although in most cases it owns the rights to the books it has published, O'Reilly will release books under the Founders' Copyright only with the author's permission. The company is in the process of soliciting that permission, and 80% of the authors who have responded to date have agreed to honor the Founders' Copyright. O'Reilly is also applying the Creative Commons Attribution license to hundreds of out-of-print books, pending author approval.

O'Reilly has been exploring alternative forms of copyright and content licensing since the January, 1995 release of the "Linux Network Administrator's Guide." Author Olaf Kirch posted the first version of the book online in September 1993, and when O'Reilly offered to publish a print version, Kirch wanted to ensure that the content of the book was still freely available, as Linux was. O'Reilly agreed, publishing the book under the Free Software Foundation's GNU Free Documentation License, and contributing its extensive edits back into the online version. In his preface to the print book, Kirsch noted, "In my view, the great service O'Reilly is doing to the Linux community (apart from the book becoming readily available at your local bookstore) is that it may help Linux be recognized as something to be taken seriously."

O'Reilly has since released a number of books under various open source licenses, either because the author requested it or because the book's sales didn't warrant keeping it in print, but the content was very useful to a particular group of people. A complete list of available titles is at www.oreilly.com/openbook. As they implement the Founders' Copyright, O'Reilly will continue to make more titles available online under the Creative Commons Attribution license.

• More about the Founders' Copyright
• A list of the O'Reilly titles to be released under the Founders' Copyright
• A description of the Creative Commons Attribution license

ONLamp.com Open Source and Open Standards [Apr. 29, 2003]

In a recent article entitled Open Standards versus Open Source, Jonathan Schwartz of Sun Microsystems argues that open standards (i.e., open protocols) are more important than open source code. While he sets up an opposition between standards and source (that little word "versus" in his title), in reality there is no such thing--the two are mostly orthogonal to each other and, as we shall see, both are necessary.

As you might expect, Schwartz's argument has not gone unchallenged. For example, Kevin Werbach points out that open source projects depend on open protocols (think Apache and HTTP, Mozilla and HTML/CSS/JavaScript, Sendmail and SMTP), but that proprietary products do, too (IIS, IE, Exchange). And Dave Winer, while cautioning against the often-obfuscated output of the major standards bodies, celebrates the diversity that results from open formats and protocols: small development houses are free to create closed implementations and thus are not tied to restrictive licenses such as the GPL.

Yet the landscape is even more nuanced. For instance, closed formats and protocols do not necessarily keep out open (or merely unapproved) implementations. We see this in document editing with AbiWord and OpenOffice, both of which will read and generate Microsoft's closed document formats with a fair degree of accuracy. We see this also in the instant messaging space with clients like Gaim and Fire, both of which enable users to communicate with the open Jabber network as well as the closed services of the legacy IM providers (AIM, ICQ, MSN, and Yahoo). Thus closed formats and protocols are not necessarily the death knell for open source. Unfortunately, they do quite effectively limit implementations to mimicking the original (which is one of the common criticisms of open source). So open formats and protocols do matter.

As with so much else in life, the issue comes down to a question of power. Big companies usually prefer to control formats and protocols. That is why they often dominate official "standards" processes through their overwhelming involvement in ostensibly open organizations such as the IETF and W3C, let alone industry consortia such as MPEG or the Open Mobile Alliance. Too often, official standards processes keep smaller companies out of the loop, as Dave Winer legitimately complains. Winer's approach is to develop open formats (such XML-RPC) outside the auspices of the large standards organizations, then evangelize them independently to both open source and commercial developers.

Dave Winer's success with this approach points to the critical importance of the "third leg of the stool": an open community. An open protocol or format that is dominated by big companies (with only one marginal open source implementation or a few token offerings from smaller developers) is not a healthy ecosystem. To really thrive, a protocol needs a wealth of implementations--some closed, some open, some from big companies, some from smaller development houses, some from open source projects. And those implementations must engender a true community in which the people who do the work and use the software can easily join together to share information and learn from each other (this is what Tim O'Reilly calls the architecture of participation).

So what is a standard? Some people think that when the IETF or W3C approves a protocol or format, it thereby becomes a standard. But standardization is not a matter of approval; rather, it is a matter of acceptance in the market. And what is the market? It's a complex stew of projects and organizations who develop and use the emerging standard. In fact, it looks a lot like the ecosystem of developers and users, but written on a global scale. Not all standards are open (for example, MS Word and PowerPoint). However, when formats and protocols are open, then open implementations that are technically strong usually (but not always) tend to be accepted by the marketplace as standards.

 

The Chronicle Daily news 03-18-2003 -- 01

A group representing college media centers is warning the U.S. Copyright Office about a possible conflict between two federal laws, one meant to limit electronic access to copyrighted material and the other designed to broaden access to the same material for online education.

At issue are the Technology Education and Copyright Harmonization Act and the Digital Millennium Copyright Act. The first measure is known as the Teach Act and was signed into law in November. It amended copyright law to allow college instructors to use nondramatic works, such as news articles and novels, and portions of dramatic works, such as movies, in online courses without paying fees and without seeking the copyright holder's permission.

The second law, which took effect in 1998, has a section that makes it illegal to bypass technologies that block access to copyrighted material. In a letter sent last month to the Copyright Office, the Consortium of College and University Media Centers says it wants clarification of that section of the digital-copyright law, known as the anti-circumvention provision.

What worries the media centers is that colleges might not be allowed to bypass copying protections even when they need to do so to use materials from CDs and DVDs for distance education, as permitted by the Teach Act in certain circumstances. The problem arises when digital materials are not also released in non-digital formats that the colleges can fall back on, such as print.

The group represents 312 college media centers, many of which are responsible for helping faculty members create online courses.

The group's letter was among dozens sent to the copyright office. It is considering exceptions to the anti-circumvention provision, as it is legally required to do every three years.

Noting that colleges have barely begun to apply the provisions of the Teach Act, the group says that given the law's "great promise and its expected wholesale adoption by nonprofit higher education ... we cannot wait another three years to deal with the impact of this conflict after the fact."

Jeff Clark, the chairman of the college media group's government regulations and public-policy committee, wrote the letter. He says he knows of no specific cases in which colleges have felt constrained from taking advantage of the Teach Act because of the anti-circumvention provision.

"It was more a proactive measure," he says.

Allan R. Adler, vice president for legal and governmental affairs for the Association of American Publishers, which helped draft the Teach Act, says the kind of conflict that Mr. Clark's letter describes would be "very rare." Publishers of books and journals almost always have analog versions of digital material. Those that do not often market digital material specifically for educational purposes, he says.

Later this year, the Copyright Office is expected to reveal its opinions on the comments it has received during hearings on the issue.

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Slashdot Intel, Red Hat Agree To BSD License For Intel Patches

Thanks Linus. I don't think that I have any inherent moral right to dual-license reiserfs, but it sure is pragmatic to do so, and the courtesy of permitting me to do so is gratefully accepted from our contributors.

A bit more than half of our income comes from the dual licensing, and we'd not have survived to this date fiscally without it. If anyone on the reiserfs team ever owns a Boxster;-) at sometime in the future, it will be from dual-licensing to Apple, a storage appliance vendor, or the like.
(from Hans Reiser)

09:09 Monday 17th February 2003ZDNet UK - News - Story - Intel, Red Hat cure open-source hiccup by Stephen Shankland, CNET News.com 

A licensing conflict threatened to stop Red Hat from contributing to a key Intel open-source project

Red Hat and Intel have settled a licensing hiccup that threatened to prevent the Linux company from contributing to Intel's open-source project -- a reminder of the frictions that can arise between the commercial tech world and the open-source community.

The wrangling came to an end last week when Intel changed licensing terms for the software project. It involved one component of power management software used in Linux and several other operating systems. The component -- an "interpreter", which interprets a computer's power management abilities -- is an Intel open-source project that Red Hat had been trying to help with. But legal complications connected to the licenses governing the interpreter had hampered Red Hat from contributing.

Intel's interpreter was originally governed by two licenses -- the open-source General Public License (GPL) and the proprietary "component architecture" (CA) license. However, when Red Hat wanted to submit improvements covered under the GPL, that license prohibited Intel from incorporating those changes in the proprietary version of the software covered by the CA license.

Intel says it has now expanded the interpreter licensing for the GPL version, adding a variant of the BSD license, which is more liberal than the GPL. The dual licensing essentially bypasses a GPL provision that requires all improvements to GPL-covered software to also be brought under the GPL -- which means now improvements may be made proprietary as well as open-source.

"It allows everyone to help improve the code, while still allowing the code to be used by everyone, not just Linux," said Guy Therien, principal engineer of mobile software architecture in Intel's mobile platforms group, in a statement.

Intel's move illustrates the legal complications that crop up as the open-source community intersects ever more frequently with the closed, proprietary world of the traditional computing industry.

Alan Cox, a Red Hat employee and one of the top deputies to Linux leader Linus Torvalds, appears mollified by the new approach. "The business about how to feed patches is one that's -- I think -- resolved," he said in a posting to the Linux mailing list for power management.

The interpreter at the center of the wrangling is part of a technology called Advanced Configuration and Power Interface (ACPI), the successor to the older Advanced Power Management technology. ACPI was developed by Compaq, Intel, Microsoft, Phoenix Technologies and Toshiba.

Red Hat is working to make contributions to the power management software -- which computers use to control tasks such going into hibernation mode -- and to ACPI, to bring these into its version of Linux. ACPI is moving from the domain of development project to shipping product. The latest test version of Red Hat Linux, code-named "Phoebe", included ACPI and was released in December.

It's not the first time open-source licenses have been changed to better accommodate the proprietary computing world. Ximian adopted a more liberal license for some of its Mono software to create an open-source version of Microsoft's .Net, so that Intel software could be incorporated into the project.

Intel proposed the BSD license change in December on the Linux kernel mailing list. Torvalds was among those who chimed in about the move, saying that dual licenses cover several other important sections of Linux kernel software.

O'Reilly Network Brookings Institute on Questioning the Economic Justification for Copyright Law's Prohibition Against Unauthorized Copying [February 05, 2003]

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