In a nutshell, I consider a Free Software company as a thin membrane, with their clients on one side and the developers and Free Software on the other. They mediate between the two wowrlds, and the value they bring to their clients consists of two things: (1) Service – which is their responsiveness to their costomers & (2) their reputation and integrity.
Well, guess what-they just assinated their own integrity. So all they have left is service, and that means they are at a disadvantage to their competitors.
I think this is an excellent description of what a free software company does. Fundamentally, they create value by serving as an intermediary between two distinct communities that operate on somewhat different norms. On the one hand, you’ve got the free software community, which is organized on fundamentally non-commercial principles. The coin of the realm is code, not money. You gain a good reputation in that community by writing great code and making it available for others to build on, and by respecting the communities strong norms of reciprocity.
Don Marti makes a good point about the enforcibility of the GPL in the face of deals like the Microsoft/Novell pact:
The GPL is not a top-down EULA. It’s a legal “codification” of a set of cooperation and information-sharing norms, which includes an agreed mutual defense policy on patents. So whether or not the Microsoft/Novell deal is a millimeter below or a millimeter above the letter of the law isn’t that big of a deal
Siobhán O’Mahony wrote, “Informal enforcement of license terms draws upon the normative roots of the license and occurs primarily through on-line public forums. The GPL codifies a strong norm of reciprocity that has long been an important part of the programming culture…. In the eyes of both legal scholars and informants, the GPL’s strength stems not necessarily from its legality, but from the public collective opinion of community members.”
Novell is holding an IRC meeting about the deal (via LWN.net). Novell’s “inner circle”, which negotiated the separate peace, has to sell the rest of its stakeholders on discarding the cooperation norms under which they had been working in favor of a “weasel words” interpretation of the letter of a license. I don’t see how they can pull this off.
Tim, Steve and others go after me below in an interesting exchange on compatibility and standards. I thought I’d start a new post on this to highlight this exchange and let people really sink their fangs into me since I’m taking the provocative position (at least for this board) that everyone is blowing these compatibility and DRM issues a bit out of proportion. Specifically, in my response to Tim’s “DRM Train Wreck” post below, in which he bemoaned the lack of file compatibility in the digital music world, I argued:
“Could it not be the case that THE LACK OF compatibility between players and file formats actually encourages MORE innovation and competition in some ways? I fully know, for example, that it is impossible for me to play my Xbox games on my PlayStation console or a Nintendo console. Would we be better off if perfect compatibility existed among all the games and consoles? Would 3 major gaming platforms exist at all if we could simply play all game titles on just one of those boxes? I doubt it. I think it would be more likely that only one console would prevail and the other two would disappear. And I think that would leave us worse off as a result.
Same goes for music players, in my opinion. I fully know that I can’t play all my WMA files on an Apple Ipod. But that keeps me (and millions of others) buying non-Apple players. As a result, there’s a fairly diverse and growing market of Apple competitors. Would all those competitors be viable if we could all just play our digital music on an Ipod? Again, I wonder.”
Tim responded that he “[didn’t] understand why incompatibility would cause more competition.” And Steve, one of our most frequent and thoughtful commentators here on the TLF, responded that I am “overlooking a critical point concerning incompatibility” regarding “unintentional” vs. “intentional” variations thereof.
It’s been over a week now and it’s interesting to meter the reaction to the Microsoft and Novell deal. Popular, mainstream reaction has been generally positive–this could create a win/win for the companies, and consumers will benefit form the partnership. But for those more steeped in the open source community, there have been charged responses that indicate a chasm. Some see the agreement as legitimizing open source, at least in the eyes of the broader (Windows-dominated) marketplace. Others view this as a deal with the devil that will ultimately hurt open source and the GPL. The recent Samba team response is clear: the GPL is a zero-sum game–you exploit open source software for your gain to the detriment of others (ie. the "community"). Under Samba’s view, the Microsoft & Novell deal doesn’t enlarge the pie, but only unfairly redistributes it.
Is this the same sort of broad ideological split that separates money-making capitalists from share and share-alike Marxist communists? Or is the split more indicative of a narrow divide about what is better for software innovation, closed (or patented) or open software? Or even narrower still, are we only talking about whether the Microsoft/Novell arrangement violates the specifics of the GPL? I don’t really know–and perhaps a complete response incorporates answers to all three questions.
Tim points to the threat of a split in his post last week. He states:
Microsoft is laying the groundwork for splitting the open source community in two. On the one hand, you’ll have a handful of "open source" companies that sell products like Linux under the umbrella of cross-licensing agreements with Microsoft and other big patent holders. On the other hand, you’d have the rest of the open source community. This would give Microsoft cover to sue medium-sized open source firms and say "all we’re asking is for company X to go legit like Novell." Once they’ve collected a few scalps, they might be able to scare the business community away from buying open source software from vendors that haven’t joined the protection racket.
As I said in my post on this, I welcome these patent agreements. The Microsoft/Novell covenant not to sue is an example of market participants contracting around or within the patent and copyright legal system to reduce the transaction costs of negotiating, monitoring and enforcing licenses. Far from creating a legal cloud, unilateral or bilateral IP agreements work to create a workable opening for innovative developments in an already existing cloud of assertible (if not all enforceable) IP rights.
But I can’t agree with Tim on the following, when he describes the MS / Novell agreement:
Jim Harper and I have a new project in the works that you might be interested in. There’s been a lot written in recent months about peer production, the term Yochai Benkler coined to describe decentralized, non-commercial projects like Linux and Wikipedia. We think that someone needs to write a paper explaining the the phenomenon and relating it to the ideals of economic freedom that we focus on here on TLF.
And just for fun, we’d like to try a little experiment: can a paper about peer production be produced using peer production? We’ve set up a wiki, and we’d like to invite the libertarian open source geeks of the world to stop by and help us explain what peer production is, why it works so well, and how it’s related to economic freedom.
If the project takes off, we plan to pitch it for publication by a major think tank. Please join us! Contribute a sentence, a paragraph, or a whole section. Peer producing a paper about peer production… it’s so meta!
The Samba team is not happy about the Microsoft-Novell deal:
One of the fundamental differences between the proprietary software world and the free software world is that the proprietary software world divides users by forcing them to agree to coercive licensing agreements which restrict their rights to share with each other, whereas the free software world encourages users to unite and share the benefits of the software.
The patent agreement struck between Novell and Microsoft is a divisive agreement. It deals with users and creators of free software differently depending on their “commercial” versus “non-commercial” status, and deals with them differently depending on whether they obtained their free software directly from Novell or from someone else.
The goals of the Free Software community and the GNU GPL allow for no such distinctions.
Furthermore, the GPL makes it clear that all distributors of GPL’d software must stand together in the fight against software patents. Only by standing together do we stand a chance of defending against the peril represented by software patents. With this agreement Novell is attempting to destroy that unified defense, exchanging the long term interests of the entire Free Software community for a short term advantage for Novell over their competitors.
The GPL, at its heart, is about reciprocity: you’re permitted to distribute the software, without restrictions, provided you respect the equal freedom of others to do the same. Although Novell itself hasn’t done anything to directly restrict users’ freedom under the GPL, this agreement is clearly a step in the direction of making non-Novell users of GPL’ed software second class citizens under patent law.
It’s debatable whether the Microsoft-Novell agreement violates the letter of the GPL, and it seems unlikely that anyone will be able to prevail against Novell in court. But I think it’s pretty clear that Novell’s actions violate the spirit of the GPL. It will be interesting to see if the free software community is able to effectively punish Novell through ostracism.
This is a Red Hat marketing video, but I think it’s pretty cool:
I’ve written about this in the past: in the long run, open systems tend to triumph over closed ones. I don’t think that Red Hat will necessarily be the open system that conquers the OS market. Personally, I’m rooting for the increasingly-open Mac OS X. But sooner or later, the inefficiencies of creating large software products using a centralized, Soviet development model will render that model unsustainable.
News outlets are fascinated with the news business, so quite a few stories have been flying around the last few days about the Gannett newspaper chain’s decision to use citizen journalists.
Gannett is attempting to grab some of the Internet mojo of blogs, community e-mail groups and other ground-up news sources to bring back readers and fundamentally change the idea of what newspapers have been for more than a century. . . .
The most intriguing aspect of Gannett’s plan is the inclusion of non-journalists in the process, drawing on specific expertise that many journalists do not have. In a test at Gannett’s newspaper in Fort Myers, Fla., the News-Press, from readers such as retired engineers, accountants and other experts was solicited to examine documents and determine why it cost so much to connect new homes to water and sewer lines. The newspaper compiled the data and wrote a number of reader-assisted articles. As a result, fees were cut and an official resigned.
The blogosphere (writ large) can and often does surface relevant knowledge better than any group of reporters, no matter how smart or dedicated. Gannett is wise to recognize this and incorporate superior local knowledge-gathering into its business model.
Microsoft and Novell announced a collaborative effort. Whoa, this is big news! Windows and SuSE Linux, proprietary and open source, Microsoft and Novell–working together? Well, yes, according to a recent announcement. And for this collaborative effort to have even been formalized, a required element was some intellectual property rights housecleaning.
First, Microsoft will work with Novell and actively contribute to several open source software projects, including projects focused on Office file formats and Web services management. Second, Microsoft will not assert its patents against individual noncommercial open source developers. And third, Microsoft is promising not to assert its patents against individual contributors to OpenSUSE.org whose code is included in the SuSE Linux Enterprise platform, including SuSE Linux Enterprise Server and SuSE Linux Enterprise Desktop.
From an intellectual property perspective, numbers 2 and 3 standout – Microsoft’s legally binding promise not to assert its IP rights against SuSE Linux.
What is Microsoft doing here? It’s trying to put SuSE developers at ease that they won’t be sued. So there’s no need to obtain a license from Microsoft. Furthermore, there’s no need for sublicensing – which is particularly important for the decentralized nature of open source development.
Non-assertion covenants (also called a “promise not to assert” or “covenant not to sue”) are binding agreements. It’s a “promise” but it’s still legally enforceable under the doctrine of promissory estoppel–if Microsoft were to withdraw its promise, anyone who justifiably relied on the promise and suffered harm from the withdrawal can sue. They are ways for one party with intellectual property rights to create zones of enforcement and increase certainty for other parties. Its an example of market participants contracting around (or within) the patent and copyright legal system to reduce transaction costs of negotiating, monitoring and enforcing licenses.
Non-assertion promises are better than RAND (Reasonable and Non-Discriminatory) licenses. What is “reasonable” and “non-discriminatory” depends on the particular circumstance and is open to legal interpretation and business negotiation hassles. Furthermore, RAND does not mean royalty-free. For more on Non-assertion covenants see Andy Updegrove’s informative blog post.
I believe we’ll see more and more of these non-assertion agreements from IP rights holders. And I expound further on this in my posting at the ACT blog.
The blogosphere is abuzz with last week’s news that Oracle has decided to re-package Red Hat’s version of Linux and sell support for it at prices substantially lower than Red Hat’s own pricing. Here’s open-source skeptic Nick Carr’s take:
Yesterday, Ellison announced that his company, Oracle, fully intends to eat the fruits of the labor of Red Hat, the leading for-profit supplier of the open-source Linux operating system. Oracle is taking the version of Linux developed by Red Hat and distributing it under its own brand, as “Unbreakable Linux.” And, in a stab at Red Hat’s very heart, Ellison claims that Oracle will substantially undercut the open-source firm’s prices for supporting the software. It seems like a claim that shouldn’t be hard to fulfill. After all, Oracle doesn’t have to pay those labor costs.
Once open source became a business, rather than a movement, the rules changed. Larry Ellison, whos’s nothing if not a non-sentimentalist, understands that, and he doesn’t particularly care what “the community” thinks. His attack on Red Hat would never be called neighborly, but it is, as Business Week’s Steve Hamm puts it, “a ruthless and brilliant act of capitalism.”
It’s also something more. It illuminates a much broader and deeper tension in the digital world, a fault line that runs not only through the software industry but through every industry whose products or services exist, or can exist, as software. The tension is between social production and the profit motive. Volunteer labor means something very different in the context of a community than it does in the context of a business. In the context of a community, it’s an expression of fellowship, of the communal value of sharing. But in the context of a business, as Ellison’s move illustrates, it’s nothing more than a cheap input. Many of the most eloquent advocates of social production would prefer it if this tension didn’t exist. But it does, and it’s important.
I don’t think Carr (or Ellison, for that matter) really understands the relationship between a company like Red Hat and an open source community like the people who develop Linux. I think there are two considerations that these guys are missing, which I’ll discuss below the fold.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.