Open Source Software Shows Its Muscle (Law.com)

Posted Jun 3, 2008 22:23 UTC (Tue) by mgb (guest, #3226) [Link]

The article is about the consequences of illegal exploitation - redistributing open-source for
profit in violation of license conditions.  Unfortunately as written the article may appear to
casual readers to be implying that merely using open-source is a bad thing.

Posted Jun 4, 2008 3:42 UTC (Wed) by orospakr (guest, #40684) [Link]

By far the most glaring error I see in this submission is that they refer 
to software itself having freedom, not people.  To be honest, I 
don't think the software itself cares about being free, one way or 
another.  Not yet, anyway. ;)

That is one of the more warped ways I've seen Free Software portrayed; 
the whole idea is that the users *do* have freedom, while a few specific 
freedoms are restricted to ensure that others may enjoy the same level of 
freedom as you.

Posted Jun 4, 2008 8:58 UTC (Wed) by nim-nim (subscriber, #34454) [Link]

Lots of FUD-ing by a so-called "IP" lawyer that predicts doom, since he posits all the
byzantine inventive IP-based restrictions he makes his living of are actually central to his
customer revenues.

Posted Jun 4, 2008 19:12 UTC (Wed) by mheily (guest, #27123) [Link]

"The first thing we do, let's kill all the lawyers."
  - Shakespeare, "Henry V"

Even though this lawyer is a dangerous idiot, some of the points he raises are not new. There
is always a cloud of uncertainty around the mixing of GPL and non-GPL code because the concept
of a 'derived work' is not always clear. For example, there are some Linux kernel developers
who believe that all third-party kernel modules are derived works and must be released under
the GPL. There are others, like Linux, who take a more permissive approach to non-GPL kernel
modules, as long as they were written from scratch and not directly based on GPL code.

Now that there are five actively used GPL licenses (GPLv2, LGPLv2, GPLv3, LGPLv3, Affero GPL),
the situation is even more confusing. Who can blame this lawyer for taking advantage of the
fear and confusion to sell his questionable advice?

The best thing to do would be to distribute free software without attaching complex legal
documents such as the GPL. Licenses such as the ISC license (BIND), the MIT license (X11), and
new BSD license are simple enough to be understood by non-lawyers. You could even put software
in the public domain, like SQLite and qmail have done. Programmers should stick to programming
and keep the lawyers out of it.

Posted Jun 4, 2008 23:46 UTC (Wed) by lutchann (subscriber, #8872) [Link]

It doesn't come across to me like the article's author is unreasonably biased against open
source software.  Rather, he has a much different perspective than we do regarding the recent
stepping-up of GPL enforcement activity.

Remember, the difference between your view of software licensing and your lawyer's view of
software licensing is this: it's not your lawyer's job to make sure you comply with licenses.
His job is to figure out what's going to happen if you don't.  So this author, like any lawyer,
works from the assumption that his client has failed to follow the terms of the GPL and is now
at risk of being sued.

From a corporate attorney's perspective, the recent GPL legal actions are frightening because
(a) there is little (no?) case law to suggest how the GPL will be interpreted and applied in
court, and (b) unlike in license enforcement lawsuits in the proprietary world, the copyright
holders are not seeking monetary damages but license compliance, potentially even
retroactively.  It is completely unknown how a court would decide a suitable remedy for GPL
violations.  Especially if there are many copyright holders of the GPL code, a court might
determine that simple financial restitution may not be appropriate, regardless of the amount.
It is even within the realm of possibility that a court might compel the publication of what
was intended to be "trade secret" company source code.

Now lawyers have no idea how to gauge the legal risks when their clients modify and/or
redistribute GPL software.  They can no longer say "Well, in the worst case we might be forced
to pay $X million in damages but all our IP will be intact."  This is scary for any company
whose entire worth is based on the perceived value of their proprietary software.

So, while I agree that there is a certain amount of FUD and/or misunderstanding in the article
(copyright claims on output?!?), companies with products containing a mix of open and closed
code really should be aware that if their use of GPL code is infringing or even just falls in
a grey area, they run the risk of a lawsuit with potentially ruinous consequences.

Posted Jun 5, 2008 7:12 UTC (Thu) by JesseW (guest, #41816) [Link]

Things you can do with FOSS (Free/Open Source Software), that you can't do, no matter how much you pay, with proprietary software:

Benefit from independent review of the source code -- with proprietary software, independent review of the software is limited to treating it as a black box; and many things can be hidden in such a black box. Independent review is important to users, programmers or not, because it ensures that the software does not contain malware, or do things that secretly benefit the vendor. Even if a proprietary software vendor permits specific people to conduct "independent" tests, the reviews are not truly independent because the vendor can pick who can conduct them, and revoke permission to conduct them at any time. Only with FOSS can you have truly independent review.

Sometimes, painlessly switch to a competing program -- If you are using a proprietary software program, and you hear about a competing program that you would prefer to use because it has better support, or it's developers intend to add features you want, switching to it will always involve some amount of pain and trouble, since, because the program you are using is proprietary, the competitor must develop their code independently, and therefore introduce subtle differences and bugs. If you are using a FOSS program, and you want to switch to another program with better support or a better roadmap, in some cases you can do that while still using the programs exactly the same way, because the source code for the two programs is identical -- only the support / principles / roadmap is different. This is called a fork, and can't happen in the proprietary world, only in the FOSS community.

Don't have to "activate" it -- While not all proprietary programs contain "activation" requirements (i.e. requiring that you contact, by phone or network, the vendor to prove to them that you legally purchased the product), some very widely used ones do (like Windows XP, and Windows Vista). No FOSS program contains such a requirement, and if such a requirement was introduced in a future version, you could painlessly switch to a version that did not contain such a requirement (see above), assuming (very likely) that some programmers chose to fork the program requiring "activation" to remove the requirement.

Use both old and new versions -- You might wish to do this in order to run software that only runs on the old version, and software that only runs on the new version. While not all proprietary program licenses prohibit you from using old versions of the program after you have purchased a newer version, the Microsoft Windows XP Professional EULA does include such a clause. It's unclear if you can buy two licenses, upgrade one, and still use the older version under the other license; but it's unambiguous that, if you simply bought one copy, and expect to be able to switch back and forth between versions, that is forbidden. No FOSS license forbids this.

Rely on the "spirit" of the license not changing, even for updates -- Proprietary program licenses typically permit new licenses to apply to updates or add-ons to the program; and they make no restrictions on what those licenses can require. The GPL, the most common FOSS license, requires that the licenses for any updates to the program maintain the spirit of the original license; while this is vague, it does provide reassurance that updates won't require onerous or objectionable terms. You have no such reassurance with updates to proprietary programs.

I hope the above list will provide some more reasons why a non-technical, non-programmer user of software might prefer FOSS over proprietary solutions, beyond issues of cost or individual program quality.

Jesse Weinstein

P.S. The essay "Comparing the GPL to the EULA"(PDF) is a worthwhile read; it is a comparison of Microsoft's Windows XP Professional EULA with the GPLv2. I got some of my ideas above from it.