09 Sep 2009

Microsoft Feeds the Trolls

An announcement by the Open Invention Network has disclosed publicly for the first time another, previously-secret front in our community’s efforts to protect itself against anti-competitive aggression by Microsoft. OIN’s transaction with Allied Security Trust to buy patents, supposedly reading on free software, offered to the troll market by Microsoft prevented what could have been a very unpleasant experience for the whole free software ecosystem.

Selling patents to organizations that have no purpose except to bring litigation—entities which do not themselves make anything or conduct any research, which do not indeed contribute in any tangible or intangible way to the progress of civilization—is not standard commercial practice. What Microsoft is really doing here is sowing disruption, creating fear, uncertainty and doubt at the expense of encouraging the very sort of misbehavior in the patent system that hurts everyone in the industry, including them.

I’ve explained before why Microsoft doesn’t want to sue on its patents, and why it expends so much effort on keeping secret its efforts to bully enterprise users and redistributors of free software into buying a “Linux license,” for some large but unspecified number of patents it claims are infringed by free software. Selling patents to trolls allows Microsoft to escape the judgment of its largest customers. They don’t want to see free software destroyed. They resent Microsoft’s attempts to reduce their freedom of choice. They are also learning that they cannot, in the present economic climate, continue to pay monopoly prices for software less good than the code our community makes and lets everyone share.

Our community—including all developers, distributors and users—owes Keith Bergelt of OIN, and the companies on his board of directors, a round of serious thanks for interrupting this arms trade, and calling attention to a bad business practice. The commercial members of our community have done what only they can do: they’ve provided the resources to prevent one business from systematically exploiting the pathologies of the patent system to harm us all. But mutual defense means everybody has to help. Richard Stallman and I spent years warning that the patent system carelessly applied to software could be exploited to inhibit freedom and institutionalize monopoly. Many business organizations that used to think we were probably wrong are now sure that we are right. They are doing what they can to defend the community. But the responsibility still rests with us all.

The pressure of public opinion on Microsoft, amplified by the attention of the regulators in Europe and the United States, is significant. We need to speak out loudly now, in response to public erdisclosure of Microsoft’s stealthy patent war, and demand a real patent peace treaty. The tactics of threat and intimidation should stop. The sale of ammunition to the trolls must end. If these unfair practices don’t stop, everyone’s interests will suffer.

permalink | organizations/OIN | 2009.09.09-12:16.00

23 Apr 2007

And Now … Life After GPLv3

Not that it wasn’t wonderful. I enjoyed almost every minute of it, and I’m going to write about the ones that can be told, some day. But for me and for my colleague Richard Fontana, after months of living and breathing GPLv3, the weather’s beginning to change.

The release of Discussion Draft 3 has been greeted as warmly as I dared hope: all the recorded outrage has been emitted by Microsoft or its surrogates, which is at it should be. We had prepared Discussion Draft 3, after all, with the assumption that it was going to be the Last Call Draft, and I thought, and continue to think, that it would serve beautifully as the final GPLv3. I agree with RMS that it was very important to add another cycle of public discussion, and I’m sure the Free Software Foundation will be making some changes based on that discussion, as it has in response to comments all along. But I think the big issues have been correctly addressed, and that the detail work-which as lawyers we have to take more seriously than everyone else–is ready for the pressure of reality.

So it’s time I began to think about life after GPLv3.

Making the license is just the first phase, to be sure: SFLC and its clients will be using the new license before long. Lots of people have speculated in the press about who isn’t going to switch from GPLv2 to GPLv3. However, I’ve seen much less speculation about developers who might choose to drop other licenses in order to put their projects or commercial products under GPLv3. In fact, in my travels around the GPL-revision process this year I’ve met and talked to many such people. Their views were also taken into account in framing GPLv3, and I’ll bet there will be some notice taken late this summer and early autumn, when interesting and high-profile projects or products change licenses to adopt GPLv3, or dual license under it. And a license once applied to software must be respected; our clients’ copyrights are used to protect freedom, and we will need to help all our GPL3-using clients to get the same respect for their intentions that other free software and open source projects receive.

But this long drafting project, which has displaced most of the rest of my professional life (and, it sometimes seems, all of my personal life as well) is winding down at last. Which means it’s time to return to some of what I’ve missed. Writing and teaching, for example. Time to reorganize time. As I return to teaching at Columbia I need to concentrate more of my remaining spare time and effort on the affairs of the Software Freedom Law Center, which is inevitably going to mean less involvement with the affairs of other organizations I care very much about.

In particular, it’s time for me to leave the board of directors of the Free Software Foundation, where I’ve been since 2000. FSF is in great shape under the continued leadership of Richard Stallman and his executive director, Peter Brown. Completing GPLv3 successfully underlines the credibility with which FSF combines the most uncompromising principle with the depth of knowledge and experience needed to build broad coalitions in our community. Leaving is always hard, but there couldn’t be a more appropriate or less disruptive time.

More than anything else, however, this is a moment to focus on the new. SFLC is a wonderful place to work, for me and I hope for all my colleagues. Great things are happening that haven’t had enough attention, because everyone has been watching GPLv3. The really innovative work is being done by the other lawyers here. They are refining organizational structures, innovating strategies for setting up “project conservancies”–a new type of shared container for multiple free software projects –which gives those projects administrative and legal advantages with minimal overhead. They are counseling young projects making astonishing new free software that’s going to be rocking business’s world three or four years from now. We’re taking risk out of projects everybody is using or is going to want to use. Helping my colleagues do that work, supporting their growth as they support their clients, is the right thing for me to do right now.

Hurrah for GPLv3, and hurrah it will soon be done.

permalink | organizations/SFLC | 2007.04.23-11:11.00

22 Aug 2005

Why I like Open Source Matters (was Why I Like Mambo)

The Software Freedom Law Center and I have been interested for a while in a PHP-based CMS called Mambo. The more I studied it, the more I liked both the technology and the team. Mambo’s development team struck me as an unusual example in the FOSS world: a particularly cohesive and energetic collection of developers with similar styles and intentions. Therefore we began to talk about the Mambo team’s retaining the SFLC to do their legal work.

To my surprise, when I saw the developers in San Francisco at LWE, they were deeply concerned about the possibility that Miro might be trying to take their project away from them. So our first job for them is to help the developers set their project off on a new direction. As I would have expected, they made that decision unanimously, easily, and with strong spirit of mutual aid. I’m delighted to be working with such grownup developers.

permalink | organizations/OSM | 2005.08.22-17:24.00

15 Feb 2005

Cradle of Liberty

Today LinuxWorld—having left behind its previous East Coast home in New York—opened its winter presence in Boston. Its own press release refers to Beantown as the appropriate locale because, as the home of the Free Software Foundation, Boston is the place where it all started. Even so, the press release blunders, stating that the Free Software Foundation originated the “open source movement.” The foreseeable result? A quick correction from the cradle of liberty, in a lighter style, by the FSF’s new Executive Director, Peter Brown.

permalink | organizations/FSF | 2005.02.15-17:04.00