Google and Free Software

by on June 29, 2007 · 15 comments

Via Luis, I don’t know if there’s a specific policy angle, but this talk by Eben Moglen at Google is interesting:

The really interesting thing about this talk, from my perspective, is that it illustrates the extent to which the free software community is driven by informal norms and the power of reputation. Moglen’s basic argument is that Google’s image in the free software community is important to its long-term success as a company, and that it is therefore in Google’s self-interest to voluntarily give back code over and above what the GPL requires as a way to build social capital.

I’m not sure if this argument is right, but if it is, I think it suggests why the hand-wringing over the specific terms of GPL v3 are probably overblown. The GPL is as much a social contract as a legal document. Going to court is an important backstop for its terms, but the primary enforcement mechanism are pressures from the hacker community. This is why hackers cared so much about making an example of Novell when it signed the patent agreement with Microsoft: they want to make sure that companies that violate the spirit of the GPL pay a high price. When the primary enforcement mechanisms are social rather than legal, the exact legal terms aren’t that important: if you behave in a way that’s contrary to the spirit of the GPL, you’ll have the same problems Novell did, regardless of what the letter of the license says.

By the same token, it is likely to be in Google’s interest to give non-essential code back to the free software community even though the GPL doesn’t specifically require them to as a way of building the social capital within the free software community. As the free software community grows, the exact terms of free software licenses may become less and less important as a robust set of social norms emerge that pressure companies far more effectively than a legal document possibly could.

  • http://blog.actonline.org Mark Blafkin

    Interesting post, Tim.

    Social norms clearly play an important role in the Free Software community, but not sure that they trump the legal structures embodied in the licensing. It really depends on the circumstances.

    For those companies that are working with both OSS and proprietary software, they and their investors need legal certainty…not just the will of the Free Software community.

    Google, however, is in a bit of a pickle with the Free Software community because they rely so heavily on them. They have bought themselves a lot of good will over the past few years, which is probably why the FSF didn’t include a mandatory Affero provision in the final GPLv3.

    If they don’t find a way to stem this growing tide of distrust, from Stallman, Moglen, et al… they could find themselves in the shoes of Tivo. And Tivo, is arguably a better Free Software communtiy citizen than Google. Tivo actually gives the vast majority of their code back to the community and allow them to modify at will! Their only sin is that they don’t let you put the modified code back on the box and avoid paying the Tivo service fee. It would bankrupt them given that they sell you that box for less than it costs to make…

    Anyhow, I also find it very interesting that the
    FSF decided to launch the GPLv3 today of all days
    .


  • http://blog.actonline.org Mark Blafkin

    Interesting post, Tim.

    Social norms clearly play an important role in the Free Software community, but not sure that they trump the legal structures embodied in the licensing. It really depends on the circumstances.

    For those companies that are working with both OSS and proprietary software, they and their investors need legal certainty…not just the will of the Free Software community.

    Google, however, is in a bit of a pickle with the Free Software community because they rely so heavily on them. They have bought themselves a lot of good will over the past few years, which is probably why the FSF didn’t include a mandatory Affero provision in the final GPLv3.

    If they don’t find a way to stem this growing tide of distrust, from Stallman, Moglen, et al… they could find themselves in the shoes of Tivo. And Tivo, is arguably a better Free Software communtiy citizen than Google. Tivo actually gives the vast majority of their code back to the community and allow them to modify at will! Their only sin is that they don’t let you put the modified code back on the box and avoid paying the Tivo service fee. It would bankrupt them given that they sell you that box for less than it costs to make…

    Anyhow, I also find it very interesting that the
    FSF decided to launch the GPLv3 today of all days
    .


  • http://bennett.com/blog Richard Bennett

    This Moglen character obviously has a high opinion of himself and his industry. Lucky for him arrogance isn’t patented.

  • http://bennett.com/blog Richard Bennett

    This Moglen character obviously has a high opinion of himself and his industry. Lucky for him arrogance isn’t patented.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    Good post, Tim.

    Thanks especially for the correct use of the word hacker, which had started to slip into a different meaning through it’s misuse in popular media.

    Relevant here is Eric Raymond’s point in the Cathedral and the Bazaar that those who function in a Culture dominated by abundance, as opposed to a culture of scarcity, function in different ways. Eric cited an anthropologist who made this observation, and drew parallels with its operation in the software industry.

    My take on the wrangling on the wording of the GPL is this, though:

    the amount of money at stake, and the degree to which M$ and some others see the GPL as hurting their business model, means that the rewording of the GPL in 3.0 is just Round 1. Round 2 will be the legal challenges, and it will be interesting to see how MS will fight these–will it continue fighting via proxy–as in the SCO case–or will it actually get involved?

    My thinking is that M$ is already out there threatening lawsuits. Why else would Dell decide to pay M$ for each Linux license?

  • http://enigmafoundry.wordpress.com eee_eff

    Good post, Tim.

    Thanks especially for the correct use of the word hacker, which had started to slip into a different meaning through it’s misuse in popular media.

    Relevant here is Eric Raymond’s point in the Cathedral and the Bazaar that those who function in a Culture dominated by abundance, as opposed to a culture of scarcity, function in different ways. Eric cited an anthropologist who made this observation, and drew parallels with its operation in the software industry.

    My take on the wrangling on the wording of the GPL is this, though:

    the amount of money at stake, and the degree to which M$ and some others see the GPL as hurting their business model, means that the rewording of the GPL in 3.0 is just Round 1. Round 2 will be the legal challenges, and it will be interesting to see how MS will fight these–will it continue fighting via proxy–as in the SCO case–or will it actually get involved?

    My thinking is that M$ is already out there threatening lawsuits. Why else would Dell decide to pay M$ for each Linux license?

  • http://blog.actonline.org Mark Blafkin

    Um, Enigma… you may not have noticed, but it isn’t like Microsoft (or even ACT) is the only one that has problems with the language of GPLv3.

    Second, I think your premise of “how MS will fight these” is off the mark. If you’ve been reading Eben’s comments about the GPLv3 and the supposed trap they’ve created for MS as a distributor of GPLv3 code in Linux, well… it’s unlikely that MS will be the one suing to test the GPLv3. It will be the FSF.

    Also, you seem to misunderstand how patent discussions happen between major companies. With companies like Dell, Xerox, and Samsung, it’s a lot more civil than you might think. Microsoft presents its patents and the technologies it believes infringe on those patents, the other company’s lawyers review that information and make a decision based on a legal/technical analysis of the situation – not some bullying/hardball tactics by MS. These companies have serious lawyer and the money & patent portfolios necessary to fight MS if they thought the claims were bogus.

  • http://blog.actonline.org Mark Blafkin

    Um, Enigma… you may not have noticed, but it isn’t like Microsoft (or even ACT) is the only one that has problems with the language of GPLv3.

    Second, I think your premise of “how MS will fight these” is off the mark. If you’ve been reading Eben’s comments about the GPLv3 and the supposed trap they’ve created for MS as a distributor of GPLv3 code in Linux, well… it’s unlikely that MS will be the one suing to test the GPLv3. It will be the FSF.

    Also, you seem to misunderstand how patent discussions happen between major companies. With companies like Dell, Xerox, and Samsung, it’s a lot more civil than you might think. Microsoft presents its patents and the technologies it believes infringe on those patents, the other company’s lawyers review that information and make a decision based on a legal/technical analysis of the situation – not some bullying/hardball tactics by MS. These companies have serious lawyer and the money & patent portfolios necessary to fight MS if they thought the claims were bogus.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    Well, it seems that MS is trying to de-legitimize FOSS, and it is no secret that they would very much like to see GPL3.0 not be adopted. As Groklaw has documented, MS is one of the parties behind the SCO suit. They arranged the IPE financing and they also bought a license from SCO at a very convenient time for the financing of the lawsuit. Re-read the Halloween memo if you don’t think MS has a variety of tactics to de-rail FOSS.

    BTW, I had predicted amore than a year and a half ago that MS’s strategy vs FOSS would be to attempt to seize the high ground, in terms of a moral position and they would largely leave the actual lawsuits to others, via proxy.

    MS has beat the drum that their software provides better capabilities for the handicapped, and that their software is greener, and that FOSS is some kind of high tech sharecropping. None of those angles has stuck though, and MS touting the advantages to the handicapped has just lead to FOSS projects that address this shortcoming.

    If MS willfily violates the terms of the GPL, the FSF has every right, even I would say, a responsibility to sue them. However, for the FSF a suit is a matter of last resort–they have always tried to resolve issues of non-compliance with the GPL by negoitating, explaining and assisting FIRST.

    Now contrast this with SCO’s actions. Even after discovery is complete, they still have not identified with specificity the code in Linux (R) which infringes SCO rights!

    The SCO saga should be a learning experience for those who would oppose FSF, but it seems no one has learnt anything, from statements by Balmer et al…

    Microsoft presents its patents and the technologies it believes infringe on those patents, the other company’s lawyers review that information and make a decision based on a legal/technical analysis of the situation – not some bullying/hardball tactics by MS.

    Well, judging by Microsoft’s past actions (review the case of a little company called AddStor for example) I would be very surprised if MS was unaware that, when they went in to discuss patents with Dell, that Dell understood that they were talking to the owner of the monopoly PC OS. Of course, as that monopoly diminishes, it seems likely that MS’s bargaining position will weaken. So let’s see what deals they will be able to get in three years or so…

  • http://enigmafoundry.wordpress.com eee_eff

    Well, it seems that MS is trying to de-legitimize FOSS, and it is no secret that they would very much like to see GPL3.0 not be adopted. As Groklaw has documented, MS is one of the parties behind the SCO suit. They arranged the IPE financing and they also bought a license from SCO at a very convenient time for the financing of the lawsuit. Re-read the Halloween memo if you don’t think MS has a variety of tactics to de-rail FOSS.

    BTW, I had predicted amore than a year and a half ago that MS’s strategy vs FOSS would be to attempt to seize the high ground, in terms of a moral position and they would largely leave the actual lawsuits to others, via proxy.

    MS has beat the drum that their software provides better capabilities for the handicapped, and that their software is greener, and that FOSS is some kind of high tech sharecropping. None of those angles has stuck though, and MS touting the advantages to the handicapped has just lead to FOSS projects that address this shortcoming.

    If MS willfily violates the terms of the GPL, the FSF has every right, even I would say, a responsibility to sue them. However, for the FSF a suit is a matter of last resort–they have always tried to resolve issues of non-compliance with the GPL by negoitating, explaining and assisting FIRST.

    Now contrast this with SCO’s actions. Even after discovery is complete, they still have not identified with specificity the code in Linux (R) which infringes SCO rights!

    The SCO saga should be a learning experience for those who would oppose FSF, but it seems no one has learnt anything, from statements by Balmer et al…

    Microsoft presents its patents and the technologies it believes infringe on those patents, the other company’s lawyers review that information and make a decision based on a legal/technical analysis of the situation – not some bullying/hardball tactics by MS.

    Well, judging by Microsoft’s past actions (review the case of a little company called AddStor for example) I would be very surprised if MS was unaware that, when they went in to discuss patents with Dell, that Dell understood that they were talking to the owner of the monopoly PC OS. Of course, as that monopoly diminishes, it seems likely that MS’s bargaining position will weaken. So let’s see what deals they will be able to get in three years or so…

  • Fred

    This Moglen character obviously has a high opinion of himself and his industry. Lucky for him arrogance isn’t patented.

    And lucky for you, Richard, or you’d be a major patent violator.

  • Fred

    This Moglen character obviously has a high opinion of himself and his industry. Lucky for him arrogance isn’t patented.

    And lucky for you, Richard, or you’d be a major patent violator.

  • http://blog.actonline.org Mark Blafkin

    However, for the FSF a suit is a matter of last resort–they have always tried to resolve issues of non-compliance with the GPL by negoitating, explaining and assisting FIRST.

    Actually, many would argue that lawsuits are a last resort for the FSF because they really don’t want to test the GPL in court. Also, they like to shake down ‘violators’ for cash to fund the FSF (ie their settlement with Cisco re: GPL code in Linksys routers).

    Additionally, it could easily be said that MS also has “always tried to resolve issues of non-compliance…by negoitating, explaining and assisting FIRST.” They have never sued anyone over a patent as far as I know.

    Well, judging by Microsoft’s past actions (review the case of a little company called AddStor for example) I would be very surprised if MS was unaware that, when they went in to discuss patents with Dell, that Dell understood that they were talking to the owner of the monopoly PC OS. Of course, as that monopoly diminishes, it seems likely that MS’s bargaining position will weaken. So let’s see what deals they will be able to get in three years or so…

    Even if I ignore the fact that MS is banned from using that kind of leverage against OEMs based on its CD with the government, how does your little theory explain the actions of Samsung and Xerox? I’ll help you. It doesn’t!

    Why don’t you just give up the ghost and say what you really mean: “They are sofware patents. I don’t like software patents, especially any software patents MS has. ipso facto – they simply can’t be valid. And anyone that conceeds otherwise is a coward or a lair.”

  • http://blog.actonline.org Mark Blafkin

    However, for the FSF a suit is a matter of last resort–they have always tried to resolve issues of non-compliance with the GPL by negoitating, explaining and assisting FIRST.

    Actually, many would argue that lawsuits are a last resort for the FSF because they really don’t want to test the GPL in court. Also, they like to shake down ‘violators’ for cash to fund the FSF (ie their settlement with Cisco re: GPL code in Linksys routers).

    Additionally, it could easily be said that MS also has “always tried to resolve issues of non-compliance…by negoitating, explaining and assisting FIRST.” They have never sued anyone over a patent as far as I know.

    Well, judging by Microsoft’s past actions (review the case of a little company called AddStor for example) I would be very surprised if MS was unaware that, when they went in to discuss patents with Dell, that Dell understood that they were talking to the owner of the monopoly PC OS. Of course, as that monopoly diminishes, it seems likely that MS’s bargaining position will weaken. So let’s see what deals they will be able to get in three years or so…

    Even if I ignore the fact that MS is banned from using that kind of leverage against OEMs based on its CD with the government, how does your little theory explain the actions of Samsung and Xerox? I’ll help you. It doesn’t!

    Why don’t you just give up the ghost and say what you really mean: “They are sofware patents. I don’t like software patents, especially any software patents MS has. ipso facto – they simply can’t be valid. And anyone that conceeds otherwise is a coward or a lair.”

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