Perspective: Opening up an open-source roadblock

The open-source community is being roiled by the recent deal between Microsoft and Novell, especially by their covenant not to sue each other's customers for any possible patent infringement.

In particular, the Free Software Foundation wants to use the ongoing revision of the General Public License that controls Linux and other major open-source programs to hamstring this deal and to prevent other software distributors, whether proprietary or open-source, from adopting anything similar.

It is an interesting situation, because "FSF" is not synonymous with "open-source community," even though many news reports seem to equate the two.

The FSF is often equated to a religion, and the comparison is apt. It regards proprietary software as immoral, patents as the work of the devil, digital rights management as an unacceptable infringement on freedom, and markets for intellectual creations as undesirable or irrelevant.

In contrast, Microsoft and Novell are the antithesis of religions. They are integrated into the world of commerce and day-to-day affairs. And in this world, one rule is paramount: The customers win, because they control the marketplace.

The FSF may not be required to care about these customer demands, but most other members of the open-source community cannot be so cavalier.

From this perspective, the deal between the two is dictated by a simple reality. The customers want what the deal provides. They want interoperability of open-source and proprietary programs--the ability to run both types of program in heterogeneous environments--without being required to perform the integrations for themselves. This means that open-source and proprietary software providers must create a structure that allows them to cooperate on finding technical solutions to their customers' demands. It is not possible to solve the customers' problems for open source without also solving them for proprietary companies, and vice versa.

Customers also want freedom from concern about potential intellectual property problems. They do not want to worry whether someone might come out of left field claiming the right to enjoin some mission-critical application.

The FSF may not be required to care about these customer demands, but most other members of the open-source community cannot be so cavalier. They value the freedom and sharing of the church of open source, but they all have a foot or two, and maybe a leg, in the commercial world as well. They must have, if they are to make a living in any way except flipping burgers by night to finance code writing by day.

So community members collect paychecks from computer companies that value open-source software as an adjunct to their hardware/software/services offerings, many of which are, of course, heavily dependent upon patent protection to maintain their competitive positions. Or they work for cooperative development labs funded by these companies. Community members act as selectors and packagers of open-source systems, or they sell consulting services, or they add proprietary applications, or (like Google) they use open-source software to provide end-use services, often very profitably, and again often very dependent on intellectual property, in the form of patents.

In all of these worldly roles, open-source community members must pay attention to the customers. They might not like it; they might prefer the purity of the FSF approach, but that is not the choice on offer. If you don't want to pay attention to customers, then either arrange to have rich parents, or learn to flip burgers. (What! You call this rare?) It won't even work to get a grant from a foundation--there is no customer more imperious.

Value of the deal
Given this reality--that most members of the open-source community cannot escape the commercial world and the needs of customers--the Microsoft-Novell deal has a lot to offer.

It creates a template that can be adopted by any Linux distributor.

On the intellectual property front, the deal is highly favorable to open source. Microsoft can promise indemnity against any patent violations contained in its software. It is much harder for any open-source company to promise the same, given the less-structured nature of its creation.

The FSF wants to make it impossible for industry participants to use standard market-based techniques, such as licensing, to solve the problems.

Both approaches to software will profit from the expansion of the market that always accompanies lowered transaction costs and increased interoperability, not to mention customer happiness at avoiding risks of lock-in by either type of vendor. (Who would you rather have controlling your fate--FSF President Richard Stallman or Microsoft CEO Steve Ballmer? Most people check "none of the above.")

The FSF wants to make it impossible for industry participants to use standard market-based techniques, such as licensing, to solve the problems. This will not make interoperability and intellectual property issues go away; it will just push them onto customers to solve for themselves, and the customers are already saying loudly that they do not want this. Customers want solutions, not more problems, and denying this is not "software freedom," but plain bad policy that will make open-source software platforms less attractive for enterprise customers.

It will be unfortunate if the FSF is allowed to use its control of the drafting pen in the revision of the GPL to override the interests of the other stakeholders. And if the stakeholders allow this, it will be interesting to see how they explain their acquiescence to their management, their shareholders and most of all, their customers.

Biography
James V. DeLong is special counsel for Kamlet Shepherd & Reichert. He is also vice president and senior analyst for the Convergence Law Institute. The opinions expressed here are the author's alone.

More Perspectives

[Commander_Spock]

Taking The Safe Middle Road!

"The FSF wants to make it impossible for industry participants to use standard market-based techniques, such as licensing, to solve the problems. This will not make interoperability and intellectual property issues go away; it will just push them onto customers to solve for themselves, and the customers are already saying loudly that they do not want this. Customers want solutions, not more problems, and denying this is not "software freedom," but plain bad policy that will make open-source software platforms less attractive for enterprise customers..."; and, that middle road to take was, is and always will be IBM's OS/2 Warp. <br /><br />"the safe middle ground"<br /><br /><a class="jive-link-external" href="http://www.os2hq.com/archives/linmemo1.htm" target="_newWindow">http://www.os2hq.com/archives/linmemo1.htm</a><br /><br />Re: "OS/2's kernel is under the watchful oversight of IBM, which contributes to the stability of the OS/2 development process. That is to say, maintaining compatibility with OS/2 is much easier than with Windows -- because MS has so many conflicting versions of its stuff out there -- but it may be easier to maintain such compatibility with OS/2 than with Linux as well. I'd be interested to find out what kind of compatibility issues currently exist among various Linux app development staffs, and how these will be resolved. It may be that divergent kernels make localized compatibility solutions possible, but may prevent a broader reach into the consumer market. On the other hand, that hasn't stopped MS. The OS/2 model of steady kernel-API foundations combined with a dynamic development community just seems to me to be the safe middle ground...."

[Penguinisto]

OS/2 is as dead as AmigaOS. Deal.

Well, it prolly still lives on in Windows as some mutant child (of the old OS/2 Subsystem).

[katamari]

Ah yes, the OS/2 termites...

Yes, because OS/2 is used heavily -- or even as a minority -- on any computer today. Yes, that's right: ANY.<br /> <br />Do you OS/2 zealots ever evolve, disappear, die, or get bored? A couple of you crawl out from the woodwork once or twice a year. I see you, call you out on it, then you disappear just as fast as you appeared. Rinse lather repeat every time a new operating system comes out, or a revision to an operating system.<br /><br />OS/2 is only a success in the minds of those who focus excessively on politics, licensing agreements, orthe desire to try and be different. No one cares that OS/2 could multitask and time-slice DOS applications better than Windows. I'll repeat that: no one cares. Stop and realise that you're spending more time worrying about what it is you're using than actually getting work done.<br /><br />Just like old Amiga zealots, you need to embrace change and let go of old technology. I have done this many times in my life: I gave up the Apple II. I gave up MS-DOS. I gave up Windows 9x. You can too. I don't care what OS you go with, honestly, just please evolve and pick something used present-day.<br /><br />But then again, who am I kidding? We all know you're using Windows right now. Oh, if only I had access to CNet's HTTP server logs, I'm sure your UserAgent string would prove all...

[mmormando]

Yet another paid schill

A lawyer who makes his bentley payment from IP litigation...hm, I wonder what his position COULD be on this subject.<br />&lt;phhhhhzzzzttt&gt;

[fxjamusa]

Free Means Free

Novell knew the ground rules to begin with yet made a deliberate attempt to sidestep and thus "short-circuit" the GPL, thus the backlash. I keep hearing over and over again that neither Novell or Microsoft violated GPL v2. Perhaps not to the "letter of the law" regarding patents, but If you can't freely modify and distribute code unencumbered by the weight of patent deals then I would say it DOES violate GPL v2. GPL v2 was intended to promote the free exchange, modification, and distribution of software for those who believe in the concept, which we all the Free software community. Red Hat has created a successful business model around Free software without falling into Microsoft'? "embrace and kill" strategy, while honoring both the spirit and the letter of the law regarding the GPL. Unfortunately, the Microsoft black widow has managed to trap Novell in her web and wants to entice others to do the same. It'? only a matter of time before Novell will experience her deadly venom - just look back in history to see the many victims of her monopolist tactics. Remember that Free software was intended to serve the free community, which does not necessarity equate to a business customer, although there are many businesses now who do abide by the rules of the GPL and enjoy the fruits of free software.

[Penguinisto]

I call "Bullsh!t". Here's why:

Look, it's real simple. He's whining about GPLv3, which takes patents out of the loop entirely.<br /><br />The big point of contention? If you try to contribute code involving something that you someone else has pretty much already patented, it doesn't go into the GPLv3 project.<br /><br />Note the following:<br /><br />1) this does not prevent an end user from including patented stuff into the code and using it internally - just that it cannot be distributed or sold with that patented code in it.<br /><br />2) No one is forcing any developer to use GPLv3 in their project... GPLv2 is still there. Use it if you like. <br /><br />3) No one forces any distro maker from including (or not including) GPL v2, v3, or proprietary stuff in their products. They can mix n' match as they desire, so long as the more restricted stuff has all licensing fees respected and/or paid as required by license holders.<br /><br />The rest is pure crap on the author's part. The FSF has its own stringent sense of morals, yes - but it is not a religion. <br /><br />Nobody has to give a crap what RMS thinks about politics or life to use (or not use) his licensing products... otherwise we'd all be using HURD right now and not Linux.<br /><br />The GPL is all about insuring maximum freedom for the end-user. If proprietary-leaning corporations get all pinched in the rectum about it because their business model isn't sufficient to profit from it, too bad; this hasn't stopped IBM, RedHat, Oracle, Sun, or a whole host of other companies from pitching in for Linux and making a profit at the same time. <br /><br />As for Novell? They made their bed, they can lie in it.<br /><br />As for Microsoft? Put Up or Shut Up. IMHO, they have nothing, else they would've done one of two things: <br /><br />1) feed that info to SCO, and SCO would've been successful by now, instead of their current position, which is that of a man drowning in a self-made septic tank of litigation.<br /><br />2) filed suit against RedHat and would've named patents. <br /><br />The only reason Ballmer stops short at bluff is because he fears getting on IBM's bad side in any patent dispute (as IBM has released a ton of patents for use in Linux). See, MSFT fears that whatever patents they think Linux abuts into may be one that IBM has had for years prior, and Ballmer is scared stiff of coming down on the wrong side of such a squabble (while IBM would likely be more than happy to stick it to MSFT once and for all, considering history).<br /><br />The rest is just sheer ignorance and not a little disingenuity on the author's part.<br /><br />/P

[rapier1]

Okay

So first a bit of background. Most of my work product is funded <br />by NSF which means that everything I produce is public domain. <br />Which is fine. The public is paying for this so the public gets it <br />unfettered.<br /><br />I also think 'free' software, while a bit of a misnomer, is a good <br />idea. Much of it is unmittigated poorly supported crap but we <br />have some real gems out there that make it all worth while. <br /><br />I also think commercial software is a good thing as well. There <br />are certain applications which I want to have a professional and <br />responsible (and leagally culpable) support system behind. <br />Mission critical applications sometimes require paying the devil <br />his due. When you get right down to it there is no way I'm going <br />to use zebra as the foundation of a 10GB/s backbone router. <br /><br />So in my view there are situations that require the interoperation <br />between commerical and free software. It may not happen much <br />for purists running a single or small cluster of machines but its <br />difficult to avoid this when your needs expand into more <br />esoteric areas. As such, something that will allow free software <br />to exist and interoperate with commericial software is in my best <br />interests. <br /><br />Now, if the FSF wants to make it so that any inclusion of <br />patentable code will violate v3 then that is up to them. I do think <br />this may have unintended consequences (what about patents <br />that have been released to the public domain?) but really its up <br />to them. However, I think this sort of thing actually ends up <br />reducing the value of v3 labelled software to the average end <br />user (who cares more about getting things done than IP purity). <br /><br />Does this mean I *support* the MS/Novell deal? No. I just don't <br />see it as necessarily being a bad thing for end users. What is <br />interesting is that, in the end, the consumers will decide what is <br />best for them. Which is probably the best way of doing this <br />anyway.

[Mergatroid Mania]

I think CNET should hire you

to edit this guys articles. I agree with everything you said.<br /><br />A religion indeed.....

[mattflaschen]

Freedom Foundation?

How can you call yourself an advocate of freedom when you're essentially an apologist for unfree software? The FSF is working on behalf of users' freedom, while Novell and Microsoft mostly ignore it. The GPLv3 is an effort to prevent this freedom from being eroded. The new license will also apply automatically to code already specified as GPLv2 or later. However, it will be forced on no other copyright holders.<br /><br />The FSF didn't come to prominence only through drafting the GPL. They own one of the largest bodies of useful free software, and have the right to license it as they choose. It is blatantly hypocritical to complain that "the FSF is allowed to use its control of the drafting pen in the revision of the GPL to override the interests of the other stakeholders." When's the last time Microsoft licensed its software to appeal to other stakeholders?

[Thom101]

Appealing to Other Stakeholders

Even if Microsoft looks to its bottom-line (as it required to do under corporate law), it has long licensed products in ways that help other stakeholders. In some ways, that's the source of Microsoft's success. A zillion OEMs licensed Windows and built boxes -- prices fell, an installed base grew, etc. (By contrast, compare the history of Apple.) Microsoft continues to license under the notion of shared benefits. DeLong and rapier1 bring pragmatism to the discussion. The point is that a very orthodox GPL3 will limit who participates in development and uses OSS, corporate and otherwise. Those sharing code would dwindle and those sharing benefits would as well. The Novell-MSFT deal seems to be a straightforward way among admittedly corporate interests to share benefits and help customers.

[Urban Terrorist]

Errors and other things

Mr. DeLong seems curiously uninformed about his subject matter. Consider:<br /><br />***<br />The FSF is often equated to a religion, and the comparison is apt. It regards proprietary software as immoral<br />***<br /><br />This part is incorrect. Morality has nothing to do with the stance taken by the FSF.<br /><br /><br />***<br />patents as the work of the devil<br />***<br /><br />Again incorrect. The FSF does not regard patents as the work of the devil, they just believe that copyright is all of the protection that software needs. Heck, Bill Gates is on record as saying the same thing. <br /><br />***<br />digital rights management as an unacceptable infringement on freedom<br />***<br /><br />Well yes. I don't know ANYONE on the "consumption" side who is in favor of DRM. A lot of the artists aren't in favor of DRM either. <br /><br /><br />***<br />and markets for intellectual creations as undesirable or irrelevant.<br />***<br /><br />Totally incorrect. The FSF is in favor of a strong copyright law - and copyright is what affects software.<br /><br />***<br />They want interoperability of open-source and proprietary programs--the ability to run both types of program in heterogeneous environments--without being required to perform the integrations for themselves.<br />***<br /><br />In that case they should talk to Microsoft. Microsoft's apparent inability to produce product that uses standards properly is legendary in the industry.<br /><br />I could go on,but I'll limit myself to one more point. Mr. DeLong mentions his association with the Progress and Freedom Foundation. He does not mention that Microsoft is a donor to the Foundation. Whether Microsoft had any input on the article or not is of no importance, the fact that he has a relation to Microsoft is however pertinent. Since Mr. DeLong did not mention the relationship, I believe he was trying to hide it, and therefore that this article should be removed from CNET.<br /><br />Urban Terrorist<br /><br />Biography:<br />The Urban Terrorist is a programmer, sales representative, and musician. He uses Open Source programs for Web Surfing and Content Authoring because he finds that they are more reliable, and give better value than most of their closed source counterparts.<br /> <br /><br /><br />While it is possible that Microsoft had no influence on the article