Freedom Now

The European Commission and Oracle-Sun

Mon, 14 Dec 2009 00:35:00 -0500

I spent last Thursday and Friday in Brussels, attending the European Commission’s Oral Hearing in the competition investigation of the acquisition of Sun Microsystems by Oracle. The proceedings at the Oral Hearing were confidential; I cannot write about the presentations made there by others. I can, however, summarize the three points I made during my brief presentation on Friday; my previous written submission to the commission is already available. I want to explain what I said and where I think we stand now that the Oral Hearing is over.

Bilski

Tue, 03 Nov 2009 06:00:00 -0500

SFLC and I recently filed a brief in Bilski v. Kappos, along with plenty of other lawyers, and I gave a talk about the case, and the future of patent law, at Cardozo Law School yesterday. The outpouring of amicus briefs in this case, which will be heard by the Court on November 9, must be particularly noticeable to the Justices and their law clerks: a stack of dozens of third-party briefs seeking attention would have been the lunchtime talk of that inner core of the Court back when I worked there, and I’m pretty sure that hasn’t changed. A high stack of amicus briefs—which we called “greens,” for the color of the cover in which the Court requires they be bound—means people outside the Supreme Court think the case is important. Bilski is very important indeed. The Supreme Court and Congress must soon begin shaping patent law for the 21st century. In Bilski, the Supreme Court has an excellent place to start.

Microsoft Feeds the Trolls

Wed, 09 Sep 2009 12:16:00 -0400

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.

On Wikis in Teaching Law

Tue, 11 Aug 2009 02:00:00 -0400

Over the last two years I have built the wiki-based platform for teaching law school courses that I, as one particular teacher, need. Because it was built out of free software tools that are simple, general and flexible, anyone could at no cost adopt mine as is, change them to suit her own needs, or start again to build something more appropriate to different styles of instruction. But I’m intentionally not talking about technology choices now. Anyone who looks at the courses herself can learn all she wants to about that in a click. Here I want to talk only about teaching and learning.

On Returning to Blogging – At Fifty

Mon, 10 Aug 2009 15:55:00 -0400

I pretty much gave up writing personal essays for the web after I founded SFLC; just when RMS & I were getting ready for the making of GPLv3. It seemed to me then that everything I thought about from day to day was subject to attorney-client privilege, or was the internal business of SFLC, or was a diplomatic statement that shouldn’t be anticipated by a personal blog. I think institutional blogging is invaluable, and I love what my colleagues do at softwarefreedom.org, including the podcast. My course wikis at Columbia are experiments in teaching conducted whth my students & former students that are teaching me every day. I live in the web. But writing about the various things that matter to me, in real time, in the constant process of trying to hope efficiently that all of us could have more freedom? That’s a habit I had gotten out of.

And Now … Life After GPLv3

Mon, 23 Apr 2007 11:11:00 -0400

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.

Away from the Troubles of GPLv3

Tue, 13 Feb 2007 12:12:00 -0500

I know everyone thinks that I have given up even the semblance of maintaining a blog, and given what GPLv3 has done to my ability to communicate what I am personally up to in my life, I probably have for the moment. Eventually that massive license negotiation will be complete, and I will only have to cope here with the required discretion necessary for the ordinary practice of law, not also the conduct of industrial diplomacy.

But here’s something we can all take 4 minutes and 31 seconds to appreciate; one of the most lucid pieces of artful public instruction I’ve ever seen. I don’t know of any existing honor appropriate to the merits of this work, but when humanity begins offering the Ted Nelson Prize, I hope Professor Michael Wesch wins one of the early ones.

Link

A Renewed Invitation to Kernel Developers

Tue, 26 Sep 2006 18:13:00 -0400

In view of recent statements by developers of the Linux kernel, and the response by the Free Software Foundation, I would like to offer my personal views as the chief mediator in the GPLv3 process.

To begin with, I welcome the current expressions of opinion by kernel developers. As I have repeatedly said in private communications, and will now say again publicly, I will gladly take any steps possible to include the kernel developers in the ongoing discussion process. I invite them to represent themselves in any way they choose, and pledge to work with them to create, even at this late date, a form of participation in the deliberations about GPLv3 that would reflect their preferred means of work, and be appropriate to their position in the community of developers.

I appreciate the positions taken publicly by the kernel developers. To be clear, the process of deliberation in which FSF and everyone else has been engaged since January is not only a process of taking positions. It also involves listening to the positions others have taken: it’s the effect of listening as well as talking that gives deliberative democracy its effectiveness as well as its legitimacy.

I have been doing a job this year, on behalf of the Free Software Foundation as a client of the Software Freedom Law Center. In this time, I have watched hundreds of serious-minded and busy people take time to listen to one another’s needs, to explain their principles, to deliberate on the arrangements that affect their lives. For my colleagues and fellow citizens who develop the Linux kernel, I have nothing but respect. I ask them please to join the conversation that is going on, to listen to others whose views may not be theirs, and to help the community make the best possible choices about matters of deep common concern.

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

Mon, 22 Aug 2005 17:24:00 -0400

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.

Yet Another GPL3 Rumor

Tue, 12 Apr 2005 14:51:00 -0400

I’ll probably need a whole category for these as the process of updating the GPL begins to gather steam. It began with an article in internetnews.com reporting a conversation with Mike Olson of Sleepycat Software. Mike told internetnews.com that the Free Software Foundation was still thinking about the problem posed when someone modifies GPL’d web services software and goes into business providing competing services using the modified software, but without releasing the modifications to the community. Mike was right; that’s an issue FSF expects to address in GPLv3. Richard Stallman and I have both talked about it publicly.

But internetnews.com understood Mike to be saying that GPLv3 might somehow apply in a new way to the modifications made by companies that customize GPL’d software for their own use but never distribute to anybody else. This was confusing enough, and plainly wrong. We wouldn’t do that. But then someone went even further and posted to Slashdot suggesting that a future GPL might require users of free software, such as Amazon or Google, to pay fees simply for using GPL’d code.

Some Slashdot readers thought this last contribution was FUD or intentional flamebait. I hope it was just a silly but innocent error. Either way, the rumor was nonsense by itself, and I wouldn’t normally write in response to a nonsensical rumor. But the occasion gives me a chance to say something about reading GPLv3 news in general.

All future versions of the GPL will fully protect the freedoms that the Free Software Foundation defined decades ago, and which we believe all software users everywhere should be guaranteed. Freedom zero, the freedom to use software, is infringed if you are required to pay fees or make promises in order to use software, anywhere, anytime. FSF will never publish a license that violates freedom zero. Similarly, freedom two, the freedom to modify a program, and freedom three, the freedom to share, are violated if private modification is prohibited or sharing is required rather than permitted. You can always modify free software for your own use, and decide whether to share it with other people. If you share with others, the GPL says now and always will say that you have to give them the same freedoms you were given by others who contributed to the code you are using, modifying and redistributing.

FSF has promised the free software community generally, and the contributors to FSF-sponsored software projects in particular, that future versions of the GPL will conserve the spirit of the original license and protect the freedoms for which FSF stands. If you read a report claiming that FSF is considering license terms incompatible with the fundamental freedoms laid out in the preamble to the current GPL, you know it isn’t so.